Toward a National Ocean Policy, 1976 and Beyond. INSTITUTION Johns Hopkins Univ., Washington, D.C

DOCUMENT RESUME

ED 134 418 SE 021 490 AUTHOR Osgood, Robert E.; And Others TITLE Toward a National Ocean Policy, 1976 and Beyond. INSTITUTION Johns Hopkins Univ., Washington, D.C. School of Advanced International Studies. SPONS AGENCY National Science Foundation, Washington, D.C. REPORT NO NSF-RA-X-75-006 PUB DATE Feb 76 GRANT NSF-GI-39643 NOTE 212p.; Contains small type in tables and footnc0-es; Publication prepared by ocean Policy Project, ScItooI of Advanced International Studies AVAILABLE FROM Superintendent of Documents, U.S. Government Prf,nt5.nq Office, Washington, D.C. 20402 (Stock Number 038-000-00263-5, $2.60)

EDRS PRICE MF-$0.83 HC-$11.37 Plus Postage. DESCRIPTORS Economics; Fisheries; *Legislation; *Natura1 Resources; *Oceanology; *Policy; *Sciences; *World Problems IDENTIFIERS *Law of the Sea Conference; UNESCO

ABSTRACT Each chapter in this publication takes up a specific issue, analyzes its importance to the United States, discussesits evolution in the international negotiatingprocess, and considers the various policy options in the context of the treaty making exercise. The criteria for evaluating policy optionsare included. The eight chapters are: (1) The Evolving International Ocean Regime;(2) The Third U.N. Conference on the Law of the Sea; (3) National Security; (4) commercial Navigation; (5) Marine Environment;(6) Fisheries; (7) Mineral Resources; and (8) Marine Science. The appendices includea chart of legal and geographic definitions, a glossary,a list of selected events, and a selected bibliography. (RH)

*********************************************************************** Documents acquired by ERIC include many informal unpublished * materials not available from other sources. ERIC makesevery effort * * to obtain the best copy available. Nevertheless, items of marginal * * reproducibility are often encountered and this affects the quality * * of the microfiche and hardcopy reproductions ERIC makes available * * via the ERIC Document Reproduction Service (EDRS). EDRS is not * responsible for the quality of the original document. Reproductions * * supplied by EDRS are the best that can be made from the original. *********************************************************************** NSF-RA-X-75-006

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Toward A National Ocean Policy: 1976 and Beyond

Prepared for National Science Foundation Under Grant No. GI 39643 2 Anyopinions, findings, conclusionsorrecommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the National Science Foundation. ' , 4L re,

Toward A National Ocean Policy1 1976 and Beyond by Robert E. Osgood, Ann L. Hollick, Charles S. Pearson, James C. Orr

Prepared for National Science Foundation Research Applications Directorate Under Grant No. GI 39643 by Ocean Policy Project The Johns Hopkins University, Washington, D.C. 4 OCEAN POLICY PROJECT 41114-

Other publications by the OCEAN POLICY PROJECT:

Report of the Marine Scienct Workshop. Bologna, 1973, New Era of Ocean Polities, by Ann L. Hollick and Robert E. Osgood, 1974. Perspectives on Ocean Policy, Proceedings of the Conferenceon Conflict and Order in Ocean Relations, October 1974. International Marine Environment Policy: The Economic Dimen- sion. by Charles S. Pearson, 1975. The Ocean Policy Protect has also published numerous articles and Occasional Papers on variousocean-related issues. A complete listing is available upon request to the Project Office.

Ocean Policy Project School of Advanced International Studies The Johns Hopkins University 1740 Massachusetts Avenue, N.W. Washington, D.C. 20036

-- For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 Price $240 Stock Number 038-000-00263-5

II 5 Foreword

Few areas of contemporary concern demonstrate man'sgrowing interdependence more clearly than theoceansa fact recognized by the 141 nations currently involved in the ThirdUnited Nations Conference on the Law of the Sea (UNCLOS). Rapid scientific and technological advances have made possible therecovery of petroleumdepositsfromthecontinentalmargins andthe harvesting of mineral resources from the deepest portions of the seabed. These and other capabilities have coincided withincreases in world population and shortages of food andraw materials, resulting in new pressures on whatwere once imagined to be the "infinite" resources of the seas. The threatened extinction ofcertain species of fish and marinr mammals, and the increasing levels of marine pollution are prime examples. lo1972, in response to the growing concern with this long- neglected 70 percent of the earth's surface, the Johns Hopkins Sehool of Advanced International Studies institutedits Ocean Policy Project, with initial funding from the National Science Foundati(1n (currently under Grant No. GI 39643.) Since thattime the Project has conducted research into the broadrange of policy- relevant ocean issues and, through its graduate seminar,trained dozens of students from as many countries in the understanding and assessment of national and internationalocean policies. Because ocean policy encompasses such a diversity of issues economic. political,legal, military, commercial, scientific and ecologicalthe Project has employedan interdisciplinary approach both in its organizationam. its activities. As Principal Investigator, Robert E. Osgood provides the foreign policy and military perspectives, as well as prior experience withocean mat ters as a senior staff member of the National Security Council in 1969-70. Ann L. Hollick, currently an advisor to the U.S. delegation to the LON of the Sea Conference, combines her scholarship in international law and organization witha thorough grounding in the U.S. decisionmaking process and close observation ofthe international negotiations. Charles S. Pearson has coupled the ecologist's concern with that of an international economist in his approach to marine environmental problems. James C.Orr has focused on resource issues of the continental shelf and seabed. Richard C. Raymond, in addition to administrative responsibilities for the Project, has concentrated on dispute settlement proposalsin the context c. law of the sea. Barbara S. Bowersox collectsand maintains the specialized holdings of the Project research library, and rdltPcujeLt publications. Throughout the existence of the Project. senior staft members have been ably assisted by a number Qraduate research assistants. many of whom have gone On to el,rs in ()Lean related fields. Among these are Elliott Treby, Rubert &Boer, lames Zimmerman. N1itc1(ell Kornhlit, Alan Sielen, Peter \la ), nard. Linton Wells. Franklin Julian, (len' Haar& and How art! Sinums \Vi' acknow ledge %vith gratitude the contributions I/1t..11 h. Sincere appreciation is also extended to the National Science

I urOfiti.n tur its supp(o. and in piaticular to Robert W. Lamson id the Offn.1' lit Exploratory Research and Problem Assessment hu. as project monitor. has followed Our work from the beginning. His assistancl! in a number of areas has been invaluable, and weare gratetul.ln,i(Idition. the Project wishis to thank the Exxon Curpuration and the Alcoa Foundation ha' supplemental funds w ho Iihay emabled us to expand our program. It should he mentioned. however, that the v'eiws expressed in this study are those Id. the Ocean Policy Project and (I() not necessarilN reflect those of its spunsurs or contributors. A word or kvo also about the scope of this particular effortboth as to content and intent. Because the UN Conference on Lawof the Sea is of immediate concern to policymakers and ocean interest groups. the content of this study has been dictaml largelyby the issues currently under debate in that forum, and the status of :he negotiations as of this writing. Each chapter takes up a specific issue. analvzey its importance to the United States, discusses its evolution in the intOrnational negotiating process, and considers the various policy options in the context of the treaty-making exercise. The, criteriafor evaluating policy options are:(1) American national self-interest, enlightened by a due respect for international (mler, welfare, and equity; (2) effectiveness and flexibility of means to achieve ends related to this goal;(3) economic efficiency;(-I)domestic and international political feasihility: and (5) the time frame for implementation. The intent of this study, however, is somewhat broader. Despite the current nature of much of the subject matter, it is hoped that the reader will he equally at teatiye to the long range implications of the material presented here. One international conference does not a nationaloceanpolicy make. Regardless of the outcome of INCLOS. the world ocean is destined to become an increasingly complex and critical arena in which a multiplicity of functions undreamedof by (lrotius, Seldenor even Pardomust be actommoda toilinan orderlyfashion.ltbecomes essential, therefore, to look beyond the expedients of the current situation to a system of ocean management designed to deal with the continuing

iv technological innovations and changing national andinternational priorities that are certain to dictate futureocean relations. Only from this perspective can wemove toward a national ocean policyfor 197(1 ond beyond.

Robert E. Osgood Director. Ocean Policy Project (h:toher 1)75

8 CONTENTS

Executive Summary 1

PART I. THE LAW OF THE SEA: AN OVERVIEW 17

Chapter 1. The Evolving International Ocean Regime 19 The New Era of Ocean Politics 19 The Quest for Universal Agreement 21 A Reappraisal of the Comprehensive Approach 23 Chapter 2. The Third UN Conference on the Law of the Sea 29 The State of the Negotiations 29 The Single Negotiating Text 30 Committee I 30 Committee II 31 Commitee III 32 The Strategy Behind the Single Negotiating Text 33 Issues Yet to be Resolved 34 The Negotiators Dilemma 35 A Reevaluation of the U.S. Perspective 36 An Alternative Strategy: Limited Treaties 38

PART II. U.S. OCEAN POLICY: ISSUES AND OPTIONS 41

Chapter 3. National Security 43 I nt rod uction 43 The Political Context 44 Strategic Nuclear Interests 45 Other Security Interests 53 Modi Vivendi 56 Unilateral Force 57 uNcLos III and the Single Negotiating Text 60 U.S. Options 64

Chapter 4. Commercial Navigation 71 Introduction 71 The Present Legal Regime and Pressures for Change 71 Domestic Shipping Interests 73 U.S. Policy and the Law of the Sea Conference... 75 Evolution of U.S. Policy 76 The Single Negotiating Text 79

vii 9 Options for the U.S 81 A Management Approach to Shipping 81 Alternative Treaty Outcomes 83

Chapter 5. Marine Environment 87 Introduction 87 Sources and Types of Ocean Pollution: Control Measures 89 Principles 96 Ocean Environmental Controls 98 Role of UNCLOS 102 Issues 103 Choosing Abatement Levels 103 Shunting 105 Dual vs. Uniform Standards 107 Coastal State Environmental Jurisdiction and Enforcement Powers 107 Land-Based Sources 109 U.S. Policy Making Process 110 UNCLOS Progress, Options, Conclusions 112 The Single Negotiating Text 112 General Principles 113 Article 3 113 Article 4 113 Specific Action Deferred 113 Land-Based Sources 114 Vessels 115 Economic Zone (Non-Vessel} 116 Seabed Authority 116 Options for the U.S 118

Chaptw 6. Fisheries 125 Introduction 125 Economic Value of U.S. Fishing 126 Domestic Politics of Fishing 126 U.S. Policy and the Law of the Sea Conference 130 Evolution of U.S. Policy 130 The Single Negotiating Text 134 Options for the U.S 138 A Management Approach to Fisheries 139 Feasible Modes of Action 140 Alternative Treaty Outcomes 144

Chapter 7. Mineral Resources 149 Introduction 149 10 Section I. Oil Interests and the Law of the Sea C on feren ce 149 The Early Shelf Debate 149 Energy Needs and the Geneva Text 154 Options for the U.S 156 Section II. The Seabed Mining Issue at UNCLOS 158 Unique Aspects of the Seabed Issue and UNCLOS 159 Review of the Negotiations 163 The Economic Effects of Seabed Mining 164 U.S. Policy and the Law of the Sea Conference 168 The Single Negotiating Text 170 Options for the U.S 172 Possible New Directions 174

Chapter 8. Marine Science 179 Introduction 179 Domestic Marine Science Interests 179 U.S. Policy and the Law of the Sea Conference 181 Evoi Winn 181 The Present Legal Regime and Pressures for Change 183 The Single Negotiating Text 184 Options for the U.S 188 Options Based on Geographic Area 189 Feasible Modes of Action 189 Alternative Treaty Outcomes 193

Appendix 197 Chart of Legal and Geographic Definitions 197 Glossary of Acronyms and Terminology 198 Chronology of Major Ocean-Related Events 202 Selected Bibliography 206

ix Executive Summary

CHAPTER 1

The Evolving International OceanRegime

The objectives of this reportare to: (1) illuminate the nature of U.S. national interests in theoceans; and (2) suggest and evaluate alternative strategies to achieve theseinterests. The ocean regime, dictated toa large extent by naval and commercial policies, was remarkably stable until the mid-20th century. Since the end of World War II, however, the traditional ocean regime has been in increasing disarray due to (1) technological advances which led toan awareness of the exhaustibility of ocean resources and (2) the risinginfluence of developing countries on the use and allocation of earth's resources. Two prior Law of the Sea Conferences in 1958 and1960 failed to solve ocean issues. The Third UN Law of theSea Conference, which began in 1973, again beganan atteinpt to establish a new ocean regime by working towarda comprehensive, detailed, and widely acceptedocean treaty. As history has borne out, participants in the law of thesea negotiations underestimated the difficulties of realizing that goal. Proponents of the comprehensive approach envisionedthe creation of a treaty before "ocean grabs" gotout of hand and before excessive national ambitions and rivalrieshardened into fixed positions. U.S. acquiescence in this approach demonstrated an awareness that the issueswere in many cases difficult to disentangle, and could perhaps bestbe dealt with as a "package." Yet this comprehensive, widely accepted, detailedtreaty approach was likely to fail because of the difficulty ofreaching agreement among so many different countrieson so many different issues in a short span of time. Itappears probable that any comprehensive treaty cannot be widely accepted andany widely accepted treaty cannot be detailed andcomprehensive. The process of negotiation in the UN Lawof the Sea Conference (UNCLOS), has benefited the internationalcom- munity by helping to identify, clarify and differentiateocean interests. While a comprehensive treaty remains unlikely, the

1 12 negotiations have provided a basis for pursuing bilateral and multilateral agreements on limited clusters of issues and for the development of functional ocean organizations. Irtheabsenceof a detailed, coniprehensive and widety accepted agreement. order in the oceans will, to a large extent, depend on a conibination of tacit mutual restraints, modus vivendi short of formal agreements, enlightened national legislation,the gradual development of customary international law. unilateral claims, confrontations, the judicious use ot forte, and perhaps. occasionally, violent encounters.

CHAPTER 2 The Third UN Conference on the Law of the Sea Three sessions of the Third UN Law of the Sea Conference have failed to resolve the major issues on the 25 item agenda. Thiii disappointing progr, s only slightly relieved by the issuance of an "informal soGili negotiating text" at the Geneva seyiion in 1975. Tho single negotiatingtext (SNT1 was prepared by the thairmen of the three main committees and, as such, ;s nota product of negotiations. Factors which will determine its usefulness in future negotiations are: (1) its qualityas a legal document: (2) reflection of political compromise; and (31 the domestic and international response itelicits during the intersessional period.

The Colomittee 1 text on seabed mining reflects, almost exclusively, the views of the developing country bloc and is not lik ely to be acceptable to developed states. The Committee 11 text, on jurisdictional limits, fisheries, and other law of the sea matters, attempts to strike a compromise between maritime arid coastal statcs. Wide geographical disparities among states may, however , militate against agreement on a number of issue areas. The CommitteeIIItext, on marine pollution and scientific researth, conflictsin some cases with related ; tdvisions in the Committee I and II texts. It remains to be seen how such discrepancies will be resolved. The arbitrary decision by the Conference president to entrust the drafting of the text to the three Committee chairmen reflects the procedural dilemma, in terms of the size of the 1 3 2 nations,which has Ow numberotparticipating beginning. The .cgeicia and Conferencefrom the I,w of theSea producecompromise e_eied the wirking groupsto rejected with pitid ts itsmall have beenlargely 101 5pH.1t l'ISUPS pi,,itions repiesentation, 11,irges .11unbalanced it appearsthat the singlenegotuiting text, under in the .idonte (it rangeof issues dttreeinvnt onthe tumid which appear 1:111%.ers.11 be achieved.Outcomes ations, or oilsolci anonwill not riddled withresers probable areill a treaty than generalprinciples. more little more interests in astable _!1 a treatyembodying basicU.S. Neither mitconie%%wild satisfy del ined oceanlegal regime. issues aud cleark limited treatieson strategy ofpursuing negotiators to alternative might enable .11i isdeveloping current"corn- in whuhi consensus than the by more I'.S. policyobjectives .aluation achiek anddriserve.s the eliensR e approach" strateg!,would have ui this time,Such a having a pole vmakers at to thosestates fit,41, oflimitingparticipationthus helpingtoeliminate tl givenissue, luectinterest in stances. oak iiiuhtiihbargaining

cilAPTER 3

Security National two can bedivided into the ocean security and securityinterests in of military ,iteguries: I1 themaintenance The lattercategory main ofeconomicinterests. ten years,if the preservatilm in the next ;.".1 the morecritical concern balance ofmilitary is1,10.1% to be anadequate 'intt.11 StatesIndintains roid if theconstraints of Ow nuclearrealm power sothestrategic behavior. tomoderateSoviet may be detente ontmile be assumedthat there political context,it must which mayjeopardi',.e in the situations and in 1,IrS, Liisesand other vital resources, lot .11 aud thesupply of 14()%,ertutumls involved, triendk forces maybe critically w lochI ',S.armed broad U.S.security likelytodarnage cannOt affect The IA or Idsituations most United States lie thosewhich the whichAmerican interests iniv situations in by means.These are be damaged bv military bases, and accessto oil may may be norbility, United States military countries inwhich the actions ofpoorer inhibited fromwring force. ot dependence of the on oil ;tild nolicirto pass other through and resources. andthe need imunnt lonsthctimi, over straitsand in the I 'nue(' one ot theprimary zones of statesmay become security relationships the objectives of with coastal achievementof working The IS. developingstates. Caivcrnment MO IvornnsiIe maintains thatthe suhmarines invulnerability itoh dependson their of its intrundtlondlstraits abilityto pass lirernational submergedand ph, e agreementon a j2inile unannounced. dozens ot territorial passage- international sea would iegime ofthe straits underthe maritime territorialsea unless "innocent states for the demands legalregime ot unimpededpassage are of mu ut passage" agreed )No.ept those permits upon. (The 1.vhi4.h eaten the transit by all hi roastal peace, good ships state. Thelack of orderor security coastalstates in a mot 1.precise of or is not a position definition has "Innocent to determinefor left pfissalge."1 themselveswhat is Fiintei nationa1 straits have pass,O.1). V.S. beenidentified Lombok, suhmai as essentialfor Sunda and ines:Gibraltar, shallow ff)r Ombai-Wetar.Two of Malacca, underwater theseare too state., w ith passage, theother three relations which theUnited are controlled working States probablywill modus maintainsgood continue to vivendi. andwhich have submarines permitpassage for and submerged I PolarisPoseidon Soviet aarrying I neallimo the submarinescan target ,,:oan Sea. Atlantic and the entire It 0:1when Trident PacificOceans and iVfltdd is developed, the linden.% ,the the .extended, ate, moiled!. dependence ',traits fort eon passage of the IJ.S. through 'Hie international nay%has been II ntinclodl conaerned ',hell- under thatthe breadth Ii 4.,4151114 national of the 4,1 Ow 1 jurisdiction shores ol stdie,; tipldre might limitthe foreign4 outlines, listening devices offthe 1.rucial ua.enlandmonitoring,111,1s for Iceland I'mted listeningdevices 1111- nd the Kingdomgap, the are the Litillheandll Arctic, theNorth 1)110)AIl; meet little areas wherethe United efforts totraal, foreign resistance from States fa, e alliedstates in its a farmore difficultsubmarines.The Soviet situation in Union would hi additionto the each ofthese questions (If areas, tr,u.kum,1 thud transit through strale!..m: straits and is thatzones ot

4 1 ;) e \ tended coastal state jurisdiction will curtail conventional [hivedoperations. No matter how restrictive the regime. however, extended zones of national jurisdictioncould not tindermine America's strategic capabilityon the ocean. s technological developments and the political atmosphere turn in favor id coastal state restriction of the free commercial pass.er of maritime states, the local military balance has also turned to their advantage. In many cases, protection of U.S. military andeconomic interests vill depend more on good relations with particular states than on a law of the sea treaty. Itthistal state jurisdictional claims jeopardize U.S. securityor ec000mic interests in the Third World, the UnitedStates might not necess,irilv be deterred by immediate political costs from stipporting its ocean interests with force.

The Geneva Text and U.S. Options

The Ililted States will probably not obtaina treaty that will protect tree navigation through territorialseas and unimpeded passage through international straitsunless it makes concessions inthe "single negotiatingtext" (SNT) that emergedfromthe Geneva session, These concessions, however, do not seem directly incompatiblewith essential security interests,

large number of states find the SNT formulaunacceptable, this raises the question of whether the UnitedStates should seek a limited treaty defining theterritorial sea, rights of navigation and passage in straits and territorialseas, and e.!lits and duties in the economiczone. There remains no assurance that certain keystrait states wild sign any treaty, limitmlor comprehensive, that met U.S. requIreinViltti. If faced with a choice of a widely acceptedtreaty that fails to islIS. security interests in the economiczone or no treaty at all. the Inited Slates might decide to defer signinga treaty, jcirtly out of confidem:e that essential securityinterests could he achieved through bilateral arrangementsor limited mul- tilater,11aerveownts,by modi vivendi,and the slower development of costomary international law, and partlyout of hope that .1 lo.tter treaty could be achieved later.

5 16 CHAPTER 4

Commercial Navigation

Traditional legal notions of freedom of the seas and flag state jurisdiction over vessels are increasingly under pressure from coastal state resource interests, as well as from the international community which shows increasing concern over the manner in which flag states administer their vessels. The Third UN Law of the Sea Conference has concentrated on resource issues to the neglect of the universal interest of all states in commercial navigation. Navigational questions have been dealt with indirectly as they bear on the new forms of national sovereignty over ocean resources. Navigation interests and interests in access to resources have come into conflict in three different areas: the exclusive economic zone which seems destined to be granted coastal states;straitsusedforinternationalnavigation;and archipelagic waters. The conflict has raised serious questions as to whether interests of coastal states can be balanced with those of transiting states. Viewed from an economic perspective, ocean space used for commercialnavigationcanbeconsideredaresource. Historically, the supply of this resource has far exceeded demand. Recently, however, the size and number of ships has grown to the point where problems of shipping congestion exist in certain heavily travelled areas. The debate continues as to whether rights to control navigation ought best be vested in coastal states or the international community. A declining U.S. shipping industry has vigorously pursued legislation to revitalize America's commercial fleet through subsidy. In the UNCLOS negotiations, the petroleum industry has represented the shipping interest. The petroleum industry has supported rights of innocent passage in the twelve mile territorial sea, free passage in the 200-mile resource zone and the high seas beyond, and unimpeded passage through straits used for international navigation. With regard to protection of the marine environment, the shipping industry position, which has come to form the U.S. position at UNCLOS, supports international standards which would be jointly enforced by flag, port and coastal states. DespitetheConference'spreoccupationwithresource 17 6 questions,a growing number of developing states have publicly recognized their interests in avoidingundue restriction of navigation. tothefive years in which the United States hasbeen articulating policy in the Law of the Sea Conference,it has muved from a position in which navigationaland high seas freedoms constituted a priority toa position in which resource righk are considered equal in importance.

The Geneva Text and U.S. Options From the U.S. perspective,the provisii:as of the single negotiating text (in the Committee II section) which deal with the economic zone have the potential of stretchinginto far reaching and restrictive coastal state territorial rights. This fact derives from the inability to define what constitutesan economic or resource-related activity, and from the fact that international concerns of shipping and scientific research necessarily affect coastal stateresource interests. Single negotiating text provisionson transit passage through straits more closely approach official U.S. policy,as do, provisions for vessel source pollution. Because of the global importance of placingno unnecessary restrictions on transit through the economiczone, the United States may choose toinsist on a treaty which strongly reaffirms high seas rights beyond the territorialsea. If no treaty results from UNCLOS III, efforts could be made ina variety of areas to meet domostic goals, throughmeans of unilateral, bilateral and mid,.cral agreements and limited treaties or regional solutiop,, Whatever the outcomo of UNCLOS, the Intergovernmental Maritime Consultative Organization could be charged with greater responsibilities for the development ofa future regime for commercial navigation. This regime could includenaviga- tion systems appropriate to different areasas well as improved safety standards and liability requirements.

CHAPTER 5

Marine Environment Thi, roots of the environmental deterioration of theocean have is 7 their base in economic activity. Raw rmiterial exploitation, ti ansport. processing. and consumption all produce wastes which find their way int() the ocean. The laws of gravity, the lack of restrictive law s nationally anti internationally, and the incorrect belief that the assimilative capacity of the oceans is inexhaustible, have contributedtothe problem of ocean pollution. dust the ocean environnwnt lacks a well-defined domestic ,:onstituencv and a sense of drama and urgency, it has suffered in comparison with issues of higher priority. When pollution is consideredinanational and international context, un- w,wranted attentionis often accorded to acute pollution incole.ds like the Torrey Canyon oilspill and too little attention to low level, chronic abuses. The, (IN Law of the Sea Conference is only one part of the process through which marine environmental policies are developiol and implemented. UNCLOS is most concerned with jurisdiction, and not management questions. Whatever its outcome, critical management problems will remain. These mdnagement problems include the need to establish desirable levels of pollution abatement and to select instruments to attain ahatenwnt objectives. Several of the specific management questions include: how clean is in enough; how to prevent diversion of pollutants

from one . lion or medium to another; whether to allow less stringent standards for developing countries; how to control laml-hasedsources: and how environmental regulations should he enforced.

The Geneva Text and U.S. Options An International Environmental Agency with broadpowers to deal with ll major soun:es and types ofocean pollutants would have been adesirable outcome on economic and ecological grounds. The Geneva text does not contemplate such a regime and it is not likely to come about. The text, as currently written, does not necessarily damage the S. position on the marine environment. The provisions are sufficiently hroad to allow the United States to initiate and support 41 wide range of marine environment agreements. lowever, the current text does reduce the chances for long term rationally calculated environmental policies, The reason I.; that jurisdiction over the environmentally sensitive area, the

8 19 economic zone, would go to coastal states without effective safeguards by the international community. The environmental provisions of the text could be improved. Two specific areas are: tighter controls over coastal state attivities in the econmnic zone (particularly oil production), and some controls over refining activitieson the high seas. The option of no treaty. combined with unilateral extensions of cmistal state jurisdiction, would require the activation ofa wide range of othe.r negotiating modes. Regional agreements for senn-enclosedareas appear par- t i(ailai ly promising. The United States may want to consider greater assistance to detieloping countries in their efforts topreserve the marine environment. Some unilateral actions by the United States, suchas the phaseout of DDT. will have beneficial effectson the marine envir on ownt

CHAPTER 6

Fisheries Ammig fisiiing nations, the United States ranks fifth in volume of fish harvested and fouriiiin terms of value. Sixty percent of its commercial marine catch is taken within twelve miles of shore. U.S. fishermen harvest less than 25 percent of the fish caughtoffU.S.shores,the remainder going toforeign fishermen. In economit terms, fishing is relatively inconsequential when coropir J t, tither U.S. ocean interests such as outer continental shelf petrolt urn; but politically, the fishing interest is poerful. With some exceptions, U.S. fishing fleets have lagged behind the Soviets and Japanese in modernizing their fishing vessels. From the perspective of a law of the Sea treaty, there are several important divisions within the commercial fishing industry: coastal fishermen. distant water fishermen, and those who fish migratory and anadromous species. The official U.S. position on fisheries has evolved as a product of competition among these interests, The in ited States first adopted a "species approach" in 1971.

9 In response to strong domestic and international pressure for the adoption of a 200-mile resource zone, the United States sohseqUently adaptedthespecies approachtoa zonal approach. 1.3.the Caracas session of UNCLOS in 1974, the I..!nitedStates agreedto accept a 200-mile coastal state economic resource zone with special provisions for highly migratory and anadromous species and stipulating that coastal fisheries he fully utilized. During the 1975 Geneva session, a wide consensus on a 200- mile zone of coastal state jurisdiction emerged, but there remains considerable difference of opinion as to the legal content of that zone. Some South American states continue to press for a 200-mile territorial sea or its functional equivalent. Maritime states favor only resource jurisdiction with strong international rights and regulations to apply toother activities.

The Geneva Text and U.S. Options The Geneva text does not protect U.S. distant water fishing interests. With regard to coastal species and anadromous species. however, the U.S. position has been substantially realized in the text. t bider the terms of the single negotiating text, the coastal state is the rule maker, enforcer and arbiter when it comes to fishing activites in its 200-mile zone. In further negotiations, the United States should insist that these rights be modified by (:learly specified international responsibilities. If no treaty results from UNCLOS III, the United States will have to consider carefully its national, unilateral, regional, or international fisheries policies in terms of (1) their effect on other nations and (2) the difficulty of enforcement. Unilateral ction requires great care in order to serve as a model for other states to emulate. Insofar as possible, the United States may find it advantageous to proceed multilaterally. Regional and other inultilateral efforts would have the greatest role in eshiblishing rational management of fisheries in the absence of a t r ea t y . With pressure mounting for domestic legislation to create a 200-mile fishing zone, it is not unlikely that such legislation cmild he passed b'efore the next (March 1978) UNCLOS session. U.S. legislation in this regard could appear as a move to destroy the Conference and is likely to engender a strong negat ive ri!sponse internationally.i It might further lead to quite

1 0 different unilateral responses which would jeopardizeU.S. distant water fishing interests. The Geneva text could be improved by establishingprovisions whHh would facilitate management of entirestocks or ecological systems of fish, andpursue goals of economic efficiency as well as biologically based conservation goals.

CHAPTER 7 Mineral Resources

I. 011 Interests One of the clearest U.S. goals in the oceans is to gainaccess to andjurisdictionoveroceanmineralsspecificallythe hydrocarbon resources of the continental shelf and the manganese nodule deposits of the deep seabed. Petroleum companies were early and active participants in the law of the sea debate and have alwayS favored 'extended coastal state jurisdiction rather than international control. Hence, they have welcomed and perhaps helped prompt the transition in the U.S. position from a narrowzone of national jurisdiction to a broad one. While most oil off U.S. shoresseems destined to fall under a domestic regime of exploitation,a number of other interests of thepetroleumcompaniesremainundernegotiation unhampered oil shipping through straits and coastalzones, avoidance of arbitrary pollution standards andguarantees of the security of investments.

The Geneva Text and U.S. Options The single negotiating text (SNT) provides for coastalstate jurisdiction over resources within the 200-mile economiczone. The only salient restriction o total coastal state controlover its shelf hydrocarbon resources is the obligation topay an as yet unspecified portion of the value of production from the shelf in the area beyond 200 miles where the shelf exceeds that distance. This will affect between 6 and 22 percent of "U.S. oil." Oil company desires to have assurances of securityof investment have failed to capture the concern ofmany delegationsoutside of the developed world and no such provisions on this were included in the SNT. Oil companies 2 2' 11 retain the right to deny capital and technology to "risky" areas and may consider other forms of foreign investment less prone to nationalization or expropriation. The Federal Government might also consider investment insurance along the lines of the current Overseas Privat( Investment Corporation (OPIC) program to insure potential investors in foreign offshore oil operations against arbitrary host country action.

II. The Seabed Regime The debate over the structure and the degree of control to be granted to the international authority which will oversee the development of the seabed beyond national jurisdiction has proven to be the most politically charged and intractable issue at UNCLOS. Opinions have split along a developed-developing country axis. The states with the technology and capital to exploit the seabeds for manganese nodules have sought a regime to enable their corporate entities to exploit the seabed with a minimum of restrictions. The developing countries, on the other hand, have favored an international authority with broad powers to exploit the seabed directly, to oversee its development, and to distribute revenues among the world's poorer countries. Negotiations within Committee I (charged with the seabed mining issue) face added pressure from the threat of unilateral U.S. action to enable U.S. ocean miners to begin seabed production prior to the establishmeth of a seabed regime. The "Moratorium Resolution" passed by the UN General Assembly over the objections of the United States and others confersin the eyes of the majority of the Conferencea moral responsibility not to engage in seabed mining until a treaty is agreed. The most difficult question facing the seabed discussions at UNCLOS is the decisionmaking structure of the "international authority." The United States and like-minded states fear that Third World control would lead to a monopoly enterprise that would restrict production and deny ocean mining firms access to the seabed. While itis impossible to predict magnitudes, unregulated seabed production would likely lead to a decrease in revenues for a group of half a dozen, developing country producers of nodule minerals. Contrary to its economic self interest, thereat of the developing bloc has accorded political solidarity a high value, and has sought to place decisionmaking power in the

12 2 3 assembly of the authority toensure that developing country producers are not injured, and that developedcountries are not the sole beneficiaries ofa seabed regime.

The Geneva Text and U.S. Options The Committee I text is not representativeof the state of the negotiations and is drawn almost entirely fromtheGroup of 77 developing country bloc position withfew concessions to developed countries. It cannot be consideredto be the basis for negotiations. Under the text's provisions, controlof the proposed authority will lie in the hands ofthe developing country majoritl The United Statt tains three broad options in relation to the seabed question. It could continue withthe negotiations with the hope that UNCLOS will eventually resultin an acceptable treaty; it could act in the interim to give U.S.miners access; or it could delay action and wait untilseabed mining becomes sufficiently attractiVe to warrant miningwithout legislated assurances. U.S. action along the lines of the Metcalfbill to authorize interim seabed mining by U.S. firmsseems likely to engender opposition to other U.S. interests andconsiderable ill will against the United States, and, in the absenceof persuasive arguments that time is a factor,seems to be a risky approach. To turn the negotiationsmore toward the U.S. position, prlicvmakers could consider two differentactions. (1) In contert with other potential mining states, theUnited States could form a unified developed countryposition which could be negotiated at a future session ofUNCLOS along side the present text. (2) The United States couldenact legislation expressing the intent to begin seabed miningat some future date if an acceptable treatywere not signed. Unpopular as such a move might be among the Group of 77, it wouldserve notice that the United States will not wait foreverfor an acceptable seabed arrangement.

CHAPTER 8 Scientific Research Marine scientific researchcan be divided according to its immediate application intothree categories: commercial,

13 2 4 intelligence and academic research. Unfettered access to the world oceans has facilitatedthe acquisition and use of scientific knowledge. as well as use of ocean resources. Private researchers from academic institutions have not developed special offices for the conduct of relations with foreign governments as have multinational commercial interests. Academic institutions have generally relied on the Department of State to obtain necessary clearances when operating in coastal areas. The academic and intelligence communities share a desire for freedom of access to near shore areas, but only the academic researcher is willing to support open publication of research results.Commercial andintelligenceresearcharenot publication-oriented. In UNCLOS negotiations. the United States has stressed the importance of marine science research in the production of knowledge beneficialtoall mankind. The U.S. position recognizes that, in areas of coastal state jurisdiction, scientific research should be conducted in a manner that does not conflict with the legitimate economic interests of the coastal state. The U.S. position recognizes seven obligations on the part of researchers: (1) advance notification of the proposed research including a detailed description; (2) the right of coastal state partripation; (3) sharing all data and samples with the coastal stwe; (4) assistance in interpreting research results; (5) open publication of results;(6) compliance with all applicable international environmental standards; (7) flag state certifica- ti,:n that the research will be conducted in accordance with the treaty by a qualified institution with a view to purely scientific research. The United States has stressed that if the obligations above are fulfilled, the coastal state cannot forbid research related to exploration or exploitation of resources beyond the territorial sed. The United States is in a small, albeit growing, minority on the issue of scientific research. It is alone in having a major ocean going academic research fleet. In the negotiations, developing countries have taken issue with the prevalent Western view that scientific knowledge constitutes a public good which benefits all. They feel that technologically advanced nations are better able to use the results of their research and that benefits, therefore. accrue

14 unevenly. Developing countries fear that research ofa military or commercial nature will be used against their bestinterests. The Committee III portion of the singlenegotiating text deals with scientific research.Itreflects an effortto strike a compromise between the interests of the wealthierslates who conduct the bulk of research and those ofcoastal developing states. The text distinguishes between scientific researchof a fundamental nature and research relatingtoliving and nonliving resources; explicit coastalstate consent being required only for the latter. A series ofobligations for both fundamental and resource-related types ofresearch are set forth as well as a provision foruse of dispute settlement machinery when disagreementsoccur. Only U.S. commercial interestsare fully accommodated to the prospect of consent regimes in offshoreareas. Intelligence activities can look forward toan acceptable regime or the deliberate or surreptitious continuation ofactivities in these areas. The academic researcher will need official support and will either cease researchor develop some bilateral accommodations with coastal states. A coordinating body for academic researchwill be useful in certifying and policing researchprograms whether or not a treatyi.. .:,1pned. The I Triivrsity NationalOceanographic Laboratory Ss stem (I d be easily expanded to handle t7'.ice ft,nctions. i;r.,e.ecturc, in theDepaomPnt of State would also 1,er.efit from streamlining. Bilateral, regiorm/ aryl uni;lteral approachestake on increased importance in the c:v!.;(,,,,:r; ofa comprehensive law of the sea treaty, as do the roles of international organizationssuch as the Intergovernmental Oceanographic Commission,the Food and Agriculture Organization, UNESCO, andothers.

2Th6

15 PART I

TIE LAW OF THE SEA: AN OVERVIEW

2 7 CHAPTER 1.

THE EVOLVING INTERNATIONAL OCEAN REGIME

The objectives of this report are to: (1) illuminate thenature of U.S. national interests in ocean space; and (2)suggest alternative strategies and options for supporting these interests. To achieve these objectives we must: (3) take account of thenature of the total international environmentespecially, the political environmentas itaffects the pursuit of these interests and options within the evolving internationalocean regime. U.S. interests and policies have changed and willcontinue to change as the rudiments of anew ocean regime emerge in a changing international environment. Therefore,it is important to understand how the crucial elements ofocean policy have interacted in the past in order to understand thepresent situation and speculate about the future.

The New Era of Ocean Politics

It is no exE Aeration to characterize the international relations pertaining to the use of ocean space since 1945as the New Era of Ocean Politics. Yet the politics of thisera are so complex and so rapidly changing that they are difficult tograsp. The modern era of ocean politics before World War II was relatively simple in its basic components, and it developed gradually. Theocean relations of states in this era developed around the use of thesea for commerce, the projection of armed force, and fishing. Thegeopolitics of seapower was an integral part of world politics, and world politics could be described largely in terms of the military-diplomatic relations of the great states. The structure of commercial and naval power among these states underlay the era of imperial expansion and conflict in the 18th and 19th centuries. Thisstructure was an integral part of the system of alliances and balances ofpower that emerged in the last qoarter of the 19thcentury, broke down in

19 2 8 World War I. and briefly but tenuously revived fter World War I, until Op olut ion in world power that erupted in World War II creatett an essentially bipolar confrontation and equilibrium between the United States and the Soviet Union. The structure of commercial and naval power was shaped by changes in naval technology, the economics of industrialization, shifting patterns of conflict and alignment among the major powers, and, above all, by wars. The resulting ocean politics, although complicated in detail, were not difficult to comprehend in essence as an integral element of the prevailing Iteolpolitik, shaped by a clash and accommodation offairly coherent national interests among a few states. The numerous disputes over fishing, smuggling, and piracy were occasionally of major importance to one state or another; but in the total drama of international politics they were only a sideshow. Along with the relatively simple and gradually changing nature of nmdern ocean politics went a remarkably simple and stable ncedn regimethat is,a set of norms, laws, and institutions governing the relations of states in their use of the ocean. At the center of this regime and its customary laws was the principle of freedom of the high seas beyond a 3-mile territorial sea boundary. Inderly ing the regime were the assumptions that there were more than enough resources in the sea for everyone and that therefore no one need seek exclusive control of its resources in any area beyond national sovereignty. Almost universally accepted in peacetime, theregime was enforced bythe greatmaritime powers part icularly by Great Britainwho by virtue of their naval preponderance freely conducted thf:- overseas commerce while limiting coastal state jurisdicational claiins for fishing. Only during wars among major naval powers did the classical regime temporarily break down, but even then only with respect to shippMg. Since 1945, ocean politics have grown far more complicated and dynamic. The ocean regime has become highly unstable or has broken down altogether. President Truman's unilateral U.S. extension (if jurisdiction for economic purposes over the continental shelf, followed b% ',min American assertion of a 200-mile jurisdictional zone. which soon expanded to a claim of territorial sovereignty. marked the beginning of this process. The erosion of the classical regime took place at a mounting pace and scope after the effort of 88 participants to stabilize and recodify it in the Geneva Conference of 1958. Despite subsequent attempts to reconstruct a coherent and comprehensive ocean regime by international agreement, the determining trend has been the division of ocean space into functional jurisdictions for fishing,

20 navigation, environment, and so forth. At the root of this breakdown of tht- classicalocean regime was (a) ,m explosion of technological developments in exploitingfish, petroleum, and minerals in ocean SpaCe and (b) the risinginfluence of developing countries on issues concerning theuse and allocation of the earth's resources. Together, !hesetwo developments tended to pit the major maritinw anti naval states, emphasizingmaximum freedom of navigation and scientihc research, againstdeveloping states, emphasizing maximum access by them toocean resources and their benehts, and control and regulation of offshorewatejrs and straits. This conflict aml alignment of interests,in time, grew more complicated; but it quickly destroyed the structure ofpower and interests underlying the old regime withoutcreating the structure of a new regiine. By 1%7itwas widelyforeseenthatrising expectations concerning the exploitation of continental shelves forpetndeum and of the deep seabeds formanganese nodules, together with grow int.;competition to exploit ever scarcer fisheries, would stimulate the increasing assertion and extension ofjurisdictional claims by coastal states. The widespread trend towardassertion of at least a 12-mile territorial sea boundary foretold the obsolescence of the classical :t-mile boundary and,as one particularly important consequence for maritime states, the overlapping ofterrritorial twondariesin most of the key international straits of the world. Consequently, those maritime countries who hadmost to lose from the collapse of the old ocean regime viewed withalarm the chaotic prospectof conflictingjurisdictional claims and sharpening clashes between maritiaw and coastal state interests,which, some thought, might rival the disputesover territorial boundaries in an earlierperiodofhistory. Mounting apprehensionover the deterioration of the political environment affecting theuse of ocean space was sharpened by fears of the U.S. (and most notably, the Soviet ) military that naval transit would be impededoff foreign coasts and through international straits. The threat of oilspills, dumping Dn the high seas. and othersources of ocean pollution in a period of growing ecologicalconcern, added still another source of expiinilpd jurisdictional claims by coastalstates.

The Quest for Universal Agreement

It was in this foreboding atowsphere that the U.S.Government, in little over a year of intensive effort, formulateda Draft Seabeds

21 I'reaty for presentation to the LIN Seabed Committee in August 1q70, in the hope that the subsequent Law of the Sea Conference would produce a treaty that all nations wouhl sign before long. The effort to create d \A international ocean regime by treaty was a lawmaking venture of unprecedented scope, complexity, and rapidity. The conditions for succeding in this-venture, especially when compared to the way the traditional regime of modern times had emerged kind thrived, were anything but auspicious. Here was an 14fort to formulate rules to govern the behavior of virtually all of a vastly increased number of states with respect to multiple new as well as old uses of the ocean and its resources. Moreover, the rapid rate of technological development in the exploitation of ocean resources, in shipping, and in the military use of ocean space meant that the ocean interests of many states would he, to an important extent, unknown or at least inchoate and untested by experience over time. For fundamental political reasons, too, the international structure of ocean interests lacked the stability and consensus that sustained the traditional ocean regime. for the interests of the powerful and rich states are now regularly contested by the claims of the less privileged in numerous forums of international transaction and discourse. At the same time, in the face of these claims the militarily strong are inhibited as never before from supporting their interests with force, with the unprecendented consequence that the creation and enforcement of a new ocean regime would have to depend on an extraordinary degree of voluntary accommodation and cooperation. Recognit ion of the need for international cooperation in resolving ocean issues- is not accompanied by commensurate disposition to undertake such cooperation. The novel inhibitions of the strong in using force to support commercial, economic, and even military interests against the weak have reinforced the spreading recognition that purely national measures are inadequate for dealing with many practical problems, and this recognition has resulted in much multilateral negotiation in numerous international agencies and institutions. On the other hand, the disposition to pursue national interests through international cooperationis accompanied particularly in the so-called Third World, where governments find an enhanced role in international organizationsby a new wave of intensified national feeling, overlaid with regional, ethnic, and deep sociopolitical divisions. Furthermore, international coopera- t ion between developed and less developed countries is impeded by a widespread feeling among the latter group, enforced by the success of the Organization of Petroleum Exporting Countries (OPEC), that they must kind can overcome their exploitation by the 3 i 22 former through a basic redistribution of wealth andpower, without which there can be no just international order. The resulting national and socioeconomic antipathies and suspicionsare bound to obstruct the creation, let alone the effective operation, of laws and institutions for accommodating conflictingocean interests. Moreover, it is now obvious from the experience of the Third UN Law of the Sea Conference, that howevernecessary it may be to try tocreate a new ocean regime by internationaltreaty, the negotiating format itself greatly complicates the problem of reaching detailed working agreements by loading the agendaand linking a number of issues in complicated bargainingstrategies. It may simply be impractical for over HO governments with somany different conceptions of their interestson so many different issues to reach a consensus on a detailed, comprehensive treaty. All these difficulties in ocean lawmakingare related to a fundamental problem of international order. Everyregime among states must be supported by some structure ofpower that commands the consent or at least acquiescence of theparticipants in the system. In the new ocean politics there is neithera stable structure of interests nor a commanding structure ofpower to support a prevailing set of interests. Ocean politicsseems to be largely insulated from the realm of high military and diplomatic politics at the center of the familiar postwar internationalsystem. The structure of power that has broughta modicum of order and equilibrium to the relations of the U.S., the U.S.S.R.,and their major allies and spheres of influence is not nearlyas relevant to the task of order-making inocean relations. If the Realpolitik of the Cold War is largely irrelevant to establishingan international ocean regime, the alignment of countries according toa "North- South" or "rich-poor" orientation, is notyet, and probably never will be, sufficiently clear and compelling to be thebasis of a new international order. From the U.S. standpoint, therefore, thetask of defining the national interest and of promotinga congenial international structure of power is muchmore complicated in the politics of ocean relations than in the politics of nationalsecurity in the Cold War.

A Reappraisal of the Comprehensive Approach

The inherent difficulties of achievinga comprehensive, detailed, and widely accepted new law of thesea treaty under these conditions were, perhaps, underestimated in 1970.But, no matter

3 ) what the difficulties might be, there seemed to be compelling reasons tu make the effort. In light of subsequent experience it is time to reappraise some of these reasons. One reason for pursuing the huge task of lamaking by means of a comprehensive, universal treaty was a general, ii somewhat abstract, recognition on the part of those taking the eai ly lead in the development of ocean law that the beneficial, orderly, safe, and ecologically sound use of the ocean is a problem that cannot be safely left to purely national management. Rather, it would require an extraordinary degree of international cooperation. In practice, this insight has not prevented governments from pursuing special national interests in a competitive spirit, but it may have reinforced the disposition of the materially powerful and economically advantaged states to pursue their interests, not by an exercise of hegemony, but rather by a process of negotiation designed to elicit the cooperation of the less advantaged. So American officials did not approach the task of creating a new ocean regime as they had approached the task of creating a new international economic system after World War II. That is, they did not approach the task as a responsibility on the part of a few states who had the power to establish world order for the rest but rather as a problem of establishing a new regime in which the protection of U.S. interests would depend on eliciting the consent and collaboration of all nations. This approach came to terms with the fact that the UN was from the beginning the decisive forum for formulating and negotiating a new ocean regime. The UN process of ocean lawmaking began in 1949 when the1 'NInternational Law Commission started preparing draft conventions on various law of the sea (LOS) issues, which laid the foundation for the Law of the Sea Conferences in ;eneva in 1958 and 1960. Since the UN and the international LOS conferences were regarded as the decisive forum for resolving ocean issues, the procesQ of lawmaking had to gain the agreement of as many states as possible to laws covering all the issues that UN members might consider important. In the UN and LOS conference context it was inevitable that participating countries would see advantages to linking ocean issues over which they had more influence to those over which they had less in order to enhance their bargaining power. The process of linkage assured the comprehensiveness of the treaty effort while complicating the process of negotiation. After Ambassador Pardo's famous speech to the UN General Assembly in 1967 dramatized the promise of reaping a vast 3 24 treasure of minerals from the deep seabeds, the numberof states interested ni participating in the bargainingmore than doubled. The growing number of less developedcountries, who now perceived that they would withhold jurisdictionalfavors sought by the developed maritime states,were determined to link the issues of fishing, limits of national jurisdiction,and passage through straits to their claim for a piece of the "common heritage"of the deep seabeds, which only twoor three of the technologically advanced maritime countries had a propsect of exploiting in theforeseeable future. By N70, developments in thebargaining situation in the I IN Seabed Committee, together with theprocess of seeking a consensus in the U.S. Government among agencies with different interests and perspectives, had brought U.S.ocean officials to the reluctant realization that the United Statestoo had most to gain from linking some major issues in"manageable packages" rather than seeking separate agreementson fisheries, straits, or seabeds. In the next year or two the UnitedStates became a staunch advocate of a "comprehensive"treaty. The popularization and politicization ofocean issues following Pardo's demorche provided further impetustoward the pursuit of a comprehensive, universal LOS treaty byconvincing U.S. ocean officials of the urgency of achieving sucha treaty before the lure of ocean wealth wouldimpel coastal states to stake outextreme jurisdictional claims which they wouldnot relinquish in a treaty. The extension of such claims in the springof 1970 by Brazil and, on antipollution grounds, by Canada seemedto confirm these fears. Therefore,in some quartersnotably the Defenseand State Departmentsthere arose the specter ofa rapid expansion of territorial and jurisdictional claims that wouldseriously impinge on American interests in two ways: directly, by restrictingfreedom of navigation for American naval andmerchant shipping and requiring submarines to surface in straits overlappedby 12-mile territorial sea boundaries; indirectly, bycreating a competitive environment of conflicting claims that would bepolitically inhospitable to the global operations ofa maritime power like the United States as well as to its generalinterests in international peace and harmony. It followed, according to this view, that itwas imperative to establish new laws and institutions to control theuse of ocean space before the rush foe "ocean grabs" got out of hand, thereby precluding the opportunity to establisha new regime to replace the obsolete regime. In effect, therefore, itwas urgent to establish the new rules of the game before states had the time to play itbefore they played out that process of discovering, defining,and asserting 3 1 25 national interests in the kind of competition and conflict with other states on the basis of which customary law had traditionally become established. It may also be worth noting that the urgent task of creating a comprehensiv e new international order through legal and institutional invention was one peculiarly congenial to the W ilsonian disposition of Americans. One does not have to ascribe any special significance to the fact that lawyers dominated the process of ocean lawmaking in order to appreciate the basic American preference for pursuing national interests in terms of international rules and organizations that are presumed uniquely to serve mankind. Along with these basic reasons for seeking a comprehensive, universal LOS treaty, there were domestic conditions that made the task seem less formidable in 1970 than it would later become. For one thing,inthe definitionof American interestsdefense considerations were assigned a clear priority (if only, perhaps, for tactical reasons), and in the Department of Defense (DOD) those interests happened to be defined in terms of the maximum restriction of coastal sovereignty and a rather ambitious extent of international authority and international sharing of resources. Thus DOD's policy coincided with the "internationalist" policy of those in State and elsewhere who, for more general reasons, wanted a regime which, in American eyes, ought to have appealed to the interests of the less developed countries. In 1970, too, the pattern of bureaucratic influence on ocean issues in the U.S. Government was relatively simple and the number of active agency participants relatively few. Partly for this reason, as well as because of the priority of defense concerns, ocean issues were readily resolved in the White House. Because it was easier to get a consensus on ocean policy in the U.S. Government, it also seemed easierto pursue the ambitious strategy of quickly achieving a widely accepted treaty that would establish laws and institutions for the use of the ocean before the chance to create a new international order for the ocean were lost in an anarchy of competing nationalist claims. In retrospect, the reasons for committing U.S. ocean policy to the comprehensive treaty solution can be appraised from two quite different perspectives which are equally valid. On the one hand, one can conclude that the American approach was extraordinarily farsighted. Subsequent experience confirms the supposition that a great number of ocean issues would come to be entangled with each other. It confirms the apprehension that conflicting nationalist claims would tend to proliferate in the absence of a treaty dealing

26 3 with these issues. It confirms the conviction that itwas urgent to get wide agreement to such a treaty before excessive national ambitions and rivalries hardened into fixed positions. On the other hand, one can conclude that the effort to commitso many countries with such different interests so quickly to sucha comprehensive treaty was almost bound to fail, and that the very process of negotiating the treaty aggravated the inherent difficulties of achieving it. What seems to be a far more dubious conclusionis that the comprehensive treaty formula is still the best and onlystrategy for achieving the still quite valid objectives for which itwas designed. For the evidence of three LOS conferences strongly suggests that any comprehensive, detailed treaty will not be widely accepted and any widely accepted treaty will not be comprehensive and detailed. If this conclusion is correct, the continued dependence on LOS conferences to achieve formal agreements may atsome point impede rather than promote the establishment ofa new ocean regime.

This would not mean that the LOS conferences had been useless. They have provided the forum within which theocean interests of states have been identified, clarified, and differentlated. Insome respects, this process has opened the way to the ctjunction and compromise of conflicting interestsfor example, of coastalstate jurisdiction over a broad economic zone and maritime state rights of navigation and researchwhich may result in formalor informal accommodations outside a comprehensive international treaty. In other respects, the process has disaggregated alignments of interest, with possibly the same effect. Thus, what seemed initially to be an opposing alignment between the developed maritime states and the less developed coastal states became significantly qualified by the discovery on the part ofa number of land-locked and shelf- locked statesthat,despite their alignment with other less developed countries in the Group of 77, they have interests in gaining access to ocean resources and their benefits whichare not necessarily served by the policies of less developed coastal states. And other developing coastal countriesfor examplesome oil producing states in the Gulfdiscovered that they have shipping interests that set them somewhat apart from coastal states thatare concerned primarily with the regulation of foreign shipping through adjacent waters and straits. Although this disaggregation of interests does not facilitate the formulation ofa detailed consensus on the whole range of issues before the UN, it may provide the basis tor bilateral and multilateral agreementson more limited clusters of issues and for the development of rules and regulations in functional organizations like the Intergovernmental

21 3 Mariime Consultative Organization (IMCO). In the absence of a detailed, comprehensive and widely accePted agreennInt, however, a modicum of international order in the use of ocean space will have to depend, to a large extent, upon tacit and mutual restraints and modus viveadi short of formal agreements, upon national legislation consistent with the enlightened management and conservation of resources, and upon the gradual and often painful and uneven development of customary law, punctuated by conflictingunilateralclaims,confrontations, andoccasional violent encounters. Here, too, the LOS conferences will have left a benefk:ent legacyifthey have established certain habits of resolving ocean issues by negotiation that takes into account the interdependence of nations interests instead of by unilateral action and coerc ion that ignores this interdependence.

3 '7

28 CHAPTER 2.

THE THIRD UN CONFERENCE ON THE LAW OF THE SEA

Following nearly six years of discussions andpreparations, first within the UN General Assembly and thenin the specially designated Seabed Committee, the ThirdUN Conference on the Law of the Sea (UNCLOS III) convenedin New York in December 1973. Some 25 agenda items, embracingnumerous issues and sub- issues,constituted the formidable challenge thatfaced the delegates to this largest internationalforum. every assembled. While the opening sessionwas largely procedural, subsequent working sessions of the Conference in Caracas(1974) and Geneva (1975) have proven inconclusive. A fourthsession is scheduled for New York in March 1976. Given the magnitudeof its mandate and the limited progress of the negotiations thusfar, legitimate doubts can now be raised as to the possibility of reaching international consensus on more than a few items.

The State of the Negotiations

The disappointing progress of UNCLOS IIIwas only slightly relieved by the issuance at the Genevasession of an "informal ingle negotiating text.", The text isin no sense a result of negotiations and in the case of the sections dealingwith one of the more critical issues, seabed mining, does noteven reflect the state of the negotiations. The threepart single negotiating text (SNT) was prepared by the chairmen of the three main committees of the Conference and reflects their assessment ofpossible compromise positions on the various issues with whichtheir respective committees are charged. Conference President H. S.Amerasinghe (Sri Lanka), while assuring the delegates thatthe text is in no way binding, has expressed the hope that it wouldserve as a basis for future negotiations. 3 3 29 Whether or not the Geneva text will prove to be a useful starting point for future negotiations depends upon a number of factors. The qualityof the text itselfboth asa legal document and an approximation of political compromisewill of course determin its value as a negotiating document. More importantly, even with a single negotiating text, the Conference may well be confronted with an unmanageable taskin terms of the range of issues it must address and the number of participating nations whose interests must be met. Finally, the domestic and international response to the text during the 10 month intersessional period will affect .the potential for future negotiations. The political will to reachan international law of the sea agreement may either crystallizeor disappear in the face of this concrete document. While specific issue areas of the SNT will be considered in detail in subsequent chapters, a few general observationsare relevant to this overview of the treat y-makingprocess.

The Single Negotiating Text The most obvious fact of the single negotiating text is itsuneven quality. It is uneven both as a legal draft andas an equitable compromise between diverse and in some cases directly opposed ocean interests. Such criticism is not to overlook the fact that on some issues there may simply be no middle ground. Where that situation exists, however, and a position must lean toone side or theother,a genuine compromise requiresthe inclusion of safeguards for the interests of the opposing view. This requirement has not been consistently met in the SNT. Committee I (Deep Seabed Regime): The Committee Itext elaborates general principles and operating machinery foran international regime of the deep seabed,as well as the basic conditions to govern sea,bed exploration and exploitation. Within the context of the conference, the principal political divisionover deep sea mining has been between the "Group of 77" (comprised of over 100 developing nations) and developed nations with the capability to mine deep sea nodules. Due to behind-the-scenes pulling and hauling, the text that was drafted by the chairman (Sri Lanka) of the Committee I Working Group and amended in places by the chairman (Cameroon) of the full Committee leans notably toward the position of the developing blocor Group of 77. It is unlikely that developed countries will be willing to conduct negotiations on a text that vests all deep seabedresource rights in an international organization that conducts its own mining and that is governed by one-state, one-vote majority rule. Strong pressures already exist in the United States to promulgate mining

30 3 9 legislation unilaterally, and the orientation of this text will fuel those pressures. The only inducement for awaiting theoutcome of a further session is the provision that 10 mining sites will be reserved for joint ventures if and when the conventioncomes into force. Committee II (furisdictional Limits, Fisheries, and Other Law of the Sea Matters): The Committee II text deals with diverseissues including the territorial sea, the continental shelf,an exclusive economic zone, fisheries, and transit through internationalstraits. Due to the geographic cast of most itemson the Committee II agenda, no clear-cutsplithas developed along developed- developing country lines. Instead, interestgroups of varying membership have coalesced around differentissues. The land- !ticked states have been particularly activeas have states with little to gain from ex tending offshore jurisdiction. Equally intentupon pursuing their respective interests have been islandstates, archipelagic states, broad margin states,states bordering international straits, and states with abundant offshoreresources. In the face of this political complexity, Committee II'schairman (El Salvador) has tried to strikea compromise that would satisfy the major groups needed to makea treaty viableJthe maritime states and the coastal states. The "package deal" includesa 12-mile territorial sea, a 200-mile economiczone, and unimpeded transit through international straits overlapped by12-mile territorial seas. To satisfy the appetites of expansionists, the text would es!.iblish ex ttmsive straight baselines for islands andreefs from which offshore jurisdiction will be measured. Thetext would accord sovereign rights to theresources of the continental margin where it extends beyond 200 miles. Notevery state could be given its maximum demands and it remains to beseen whether this package will be viable. While froman overall perspective the tradeoffs. may appear balanced, from the viewpoint ofindividual and, in some cases, crucial states theymay not. Coastal and maritime states, for example, may support andeven vote for unimpeded transit through international straits,but to little purpose if the straits states do not themselves adhere to sucha regime. Land-locked and geographically disadvantagesstates may, for their part, resist a treaty which grants vast offshoreareas to islands and coastal states in exchange for onlyvague land-locked states' rights of transit to the sea andaccess to its resources. In the law of the sea forum, these statescan easily muster a blocking third. Even states that have reason to be happy withsome aspects of the Committee II tex t may strongly opposea few of its provisions. As both a maritime and a coastal nation, the United States isin exactly

31 4 0 such a situation. The United States supports the concept of a 200-. mile economic zone to ensure coastal state control over living and nonliving resources. The Committee II text, however, goes much further in granting the coastal state jurisdiction over the marine environment, the conduct of scientific research and the construction and use of artificial 1,,,tallations and structures in the zone. Such provisions directly affect U.S. global interests in commercial navigation, marine science and military security. On the other hand, U.S. coastal interests should be pleased with the text's provisions for offshore oil and fisheries. The only limits on coastal state jurisdiction over its offshore oil is the provision for revenue sharing (payments or contributions in kind based on an unspecified percent of value or volume of production) where the continental margin extends beyond the 200-mile economiczone. Only q small portion of the U.S. margin extends to such distances and the combination of depth and distance from shore makes it of remote interest to the oil industry. The provision favored by the oil industry for security of investment in the economiczone did not find its way into the text, but in any eventwas unlikely to receive support given the present international climate. Similarly. the U.S. coastal and sportfishing interests will probably he satisfied with the Committee IIAi's provisions for coastal state control of fishing in the 200-milezone of economic jurisdiction. The coastal state would not only determine the total allowable catch for each species in this zone but may alsoreserve a portion of that catch for its nationals according to its capacity to harvest. If the coastal state cannot harvest the entire allowable catch, it would grant other states access to the surplus. Separate provisions of the single negotiating text cover other segments of the fishing industry. The salmon fishermen will probably be satisfied with provisions for anadromous species but the tuna industry will probably oppose the nonbinding provisions for regionalcoopera- tion on highly migratory species. Within the fishing industryas well as between fishing and other U.S, interests, opinionas to the merits of the text will be divided. Committee III (Marine Environment, Scientific Research and Transfer of Technology):The text emanating from Committee III deals with marine pollution. marine science research and transfer of technology. On each of these subjects, there is some overlap with the texts produced by the other two Committees, and indeed in some cases, discrepancies. Unlike Committee !: provisions, the Committee III articles dealing with marine pollution do not accord the coastal late jorisdiction with regard to the marine environ- 41 32 ment in a 200-mile lune. Instead they providea more complex system of international standard setting with enforcement by flag, port and coastal states within an unspecified distance from shore. An even inure marked contrast exists between Committee III's provisions on scientific ,.ch and those of the other Committees. The Committee I text im;. 's control of scientific research by the international authority beyond national jurisdiction. The Commit- teeIItext gives theA:1stal state exclusive jurisdictionover scientific research in do .conomiczone whereby a marine scientist must obtain the consent ot the coastal state for research within200 miles of shore. The Committee ill texton scientific research is far more complex. Indeed it is based on a compromise text drafted by e,(ican and Irish delegates in the course of negotiations in that Lurttee. The provisions on scientific research callfor a distinction between fundamental research and research relatedto the resources of the economiczone and shelf. Only in the case of resource-related research would coastal stateconsent for scientific research be required.

The Strategy Behind the Single Negotiating Text The discrepancy between the approaches to marine pollutionand scientific research reflected in the three Committeetexts illustrates the tenuous quality of the Geneva text and the extentto which its articles convey the views of a few individuals ratherthan an emerging or potential consensus. The decision toentrust the drafting to the three Committee chairmen admittedlywas a choice of last resort. The Conference PresidentpropL -.;ed, on several occasionc,thecreationof formal negotiating machinery to under d he task of negotiating a single text from the alternative treat arr.,:lesbefore the Conference. On each occasion,a substantial portion of the Conference .membership rejected the creation of a smaller, representative negotiating groupprimarily because each delegation was unwilling to entrust representation of its interests or position to other states. By giving the job to the Committee chairmen, at least it would be apparent that theirtext could not represent and therefore not hind the other members ofthe Conference. This situation highlights the general procedural dilemma which faces the Law of the Sea Conference, namely toomany issues and too many participants. A group of 141 nations cannot act effectively as a negotiating group, Thenumerous agenda items before the Conference, however,are of such concrete importance to most.of its membership (albeit in varying scales of priority) thatno nation is willing to subscribe to the product ofa representative 4 2 33 negotiadng group of which itis not a member. The work of the "group of juridical experts", or the"Evensen group" as it was generally called,isa case in point. Comprised of heads of delegations from fewerthan 40 nations, the Evensengroup met prior to and during the Geneva session to negotiate compromise articles on Committee II and III issues. When the work of this group came before the full Conference, however, it was rejected by nonparticipants as the work of an elitist body that did not have a balanced representation.

Issues Yet To Be Resolved While the mechanical problem of negotiatinga 25-itemagenda among141 nationsis possibly insuperable, the substantive obstacles to a comprehensive and widely accepted treaty may be even more decisive. As noted elsewhere, it is difficult to see room for compromise on certain types of issues where divergent positions are in direct conflict arid are perceived as matters of vital national interest. Among Latin American ,nations, for instance, Ecuador, Peru and Brazil have sold the concept ofa 200-mile territorial sea to their domestic populations as a symbol of national pride and identity. For domestic reasons, these governments now find it difficult to retreat from this claim and acceptthe 200-mile exclusive economic zone which is favored by the majority of coastal states. Yet on the other side, maritime nations as well as the landlocked and geographically disadvantaged cannot accept claims of absolute sovereignty, perceiving it as a serious threat to their national security and commercial interests. The question of residual rights in the zone (i.e., all rights not specifically mentioned in a treaty) will simply not lend itself to compromise. Such rights are either vested in the coastal state or they are not.

Similarly, it is difficult to see the ground for compromise on the very important issue of unimpeded transit through international straits overlappedby 12-mile territorial seas. Maritime states, led by the United States and the Soviet Union, has,ie been adamant in their insistence upon the right of unimpeded transit through and over straits, while straits states have been equally adamant that in their krritorial seas, the right of innocent passage shall prevail. Once again, the issue comes down to a matter of a direct conflict between perceived national sovereignty of some nations and national security interests Of others.

34 4 3 The Negotiators' Dilemma

While predictions are risky before UNCLOS III completes its work,the prospects of achievingthe nominal goal of the Conferencea comprehensive, detailed and widely accepted treatymust be accorded a low probability. Although most delegations continue officially to espouse that goal,one of two alternative outcomes now seems more likely, neither of which promises to provide for successful resolution of.ocean issues. The first is a treaty riddlcd with reservations; the second,a treaty which includes little more than general principles. Eight years of discussions, in addition to identifying and clarifying specific national interests in theoceans, have also hastened the awareness of wide disparitiesamong those interests from one country to the next. The high level of politicization that individual issues have thus come to attain, together with the procedural complexities already discussed, suggest thatany treaty sufficiently detailed to resolve major ocean problems couldnot now he widely accepted. Rather than appear recalcitrant in theeyes of the international community, however, statesmay choose to sign such a treaty, placing reservations against those provisions they cannot accept. If negotiations continue along present lines, a rash of reservations :night be expected. A reservation-riddled treaty will not establkh ordyr in the oceans, or even a widely accepted modus vivendi. Conversely. the only conceivable treaty that could be widely accepted could not be very detailed. Sucha treaty, expressing only general obligations and admonitions for signatories, is, in fact, the type of agreement emerging in the single negotiating texts from the Geneva sessionof UNCLOS III. The theoretical option of concluding a widely acc ved detailed treaty has not materialized in practice. Negotiators have come to realize that provisions which go much beyond very general rules in areas of controversy will alienate one or more contending groups and couldserve as the basis for rejecting the treaty as a whole. Issues which could potentially spark this sort of controversy are not limited to the highly politicized issues, such as the seabed regime. Surrounding virtually every issue there remain some delegations prepared to reject any treaty embodying an opposing view. A treaty without teeth but designed to win the maximum number of signatories holdsno better promise of resolving ocean issues than the reservation- ridd led trea ty. Neither potential IJNCLOS outcome would satisfy basic U.S.

35 4 4 interests in a stable and clearly defined ocean legal regime. It is particularly important to keep this in mind as the U.S.Government increasingly comes to rely on the Committee II and III portions of the single negotiating text as an "acceptable basis for future negotiations." The SNT is, except in a few areas, too general to resolve ocean issues. And where it is detailed, as on the straits issue, for instance, those states most directly concerned may well reject unacceptable provisions in part or in whole. The inability to conclude simultaneously a widely accepted and a detailed treaty, and the realization that the United States is unlikely to gain all of its objectives in a single comprehensive treaty should en.:ourage U.S. policymakers to consider other options.

A Reevaluation of the U.S. Perspective The history of international negotiations might have forwarned that the United States would be unlikely to gain all of its objectives in a comprehensive treaty. The U.S. Government has had a broader range of interests than virtually any other state at UNCLOS It. In addition to the interests shared by most countriesglobal interests such as reasonable pollution standards, and the establishment of widely recognized boundaries for territorial seas, for examplethe U.S. Government has, in the past, identified eight major interests it hoped UNCLOS would sanction.: 1. a regime of guaranteed passage through and over straits used for international navigation; 2. a regime of unhampered transit through zones of coastal statejurisdictionqualifiedonlybyinternationally recognized coastal state rights to manage resources; 3. access to seabed resources on reasonable terms; 4. access to other states' coastal zones for scientific research; 5. reservation of coastal species off the United States for American fishermen; 6. access to coastal species off foreign shores which the coastal state is unable to exploit fully; 7. reservation of anadromous species for host states; and

H. internationally regulated accesstomigratory species throughout their migratory range.

The list of bargaining chips that the United States has to offer is noticeably shorter:

1. seabed mining, and other, technology and capital 4 3 36 Z. recognition of expansionary claims of other states.

To this list must be added a host of "negative incentives" which the United States could apply toward its law of thesea objectives if it chose. These negative incentives could include forms ofeconomic, political, or military coercion not directly linked to marine policy. Negative incentives have been ruled out for the most part by policy makers in the law of the sea, however. In part because of its lack of bargaining leverage, the United States has tied its acceptance of some treaty provisionsto the adoption of others. Officially, U.S. support for the 200-milezone remains contingent upon Conference acceptance ofa 12-mile territorial sea, unimpeded passage through andover straits, and a satisfactory balance of rights and responsibilities in the coastal economic zone. Yet this U.S. policy of tying acceptance ofsome provisions to the acceptance of others lacks credibility internationally. Other states find it hard to believe that the United States would not acquiesce in a 200-milezone whether or not its three conditions were met. The United States after all will bethe greatest beneficiary of the expanded zone ofresource jurisdiction in terms of ocean territory. Moreover, the Congressseems ready to assert that interest in the form of legislation to adopta 200-mile exclusive fisheries zone that would anticipate UNCLOSaction. To have its coastal species and access to other states'species too, U.S. negotiators devised the full utilization concepta complex formula the implementation of which willprove difficult at best. Actual negotiations have proven that the United States is not likelyto gain something for nothing. In the areas of distantwater fishing and scientificresearch, where American chipsare few or less compelling, the tIn ited States is unlikely to "win"as evidenced by the (;enev a text. It has been argued that the United States,more than any other participant, would benefit from abandoning the treatyprocess and enjoying the implicit rights and absence of responsibilities of the status quo regime. There are two fallacies in this argument. The United States also stands to lose the most if attemptsto settle ocean issues are abandoned. While the United States could expand its jurisdiction on the shelf, and grant itselfaccess to seabed resourims under the prevailing res niilliiis doctrine, maintaining interests which requiredforeign acquiescence would not be possible short of the resort to force, whichseems to have been implicitly ruled out by I J.S. policymakers. Rights ofpassage through straits and access to andpassage through other states' zones (mold not be assured, even if supported by the use of force. 4ij 37 A return to the pre-UNCLOS III status quo is no lunger possible. The current modus vivendi, which closely resembles the pre- UNCLOS legal regime, would give way to future unilateral coastal state extensions of jurisdiction in the absence of ongoing efforts to write an international agreement. The result would likely be a confusing series of contradictory and overlapping regimes that would seriously hamper shipping, existing fishing arrangements and perhaps naval mobility. Since abandonment of the treaty process is not an agreeable option for the United States, other courses need to be considered within the UNCLOS framework. As a first step, U.S. and foreign law of the sea neogitators may come to recognize that no treaty can be reached which is simultaneously detailed, comprehensive, and widely accepted, and may be forced to choose a second best strategy embodying this recognition. Of these three criteria, the most crucial in terms of the need to settle ocean issues is the requirement for detail. Without sufficient detail, conflicts will arise over-interpretations of states' rights, and loopholes wil! be found to avold state responsibilities. Adjudica- tion of these differences will place an unmanageable burden on any dispute settlement procedures eventually agreed upon. The need for wide acceptance of any ocean agreement is also clear. Aside from the dictates of sovereign equality which allow no state's views to outrank those of another, there is the need to achieve wide acceptance to establish a basis for customary international law. This permits application of treaty provisions in cases beyond those involving original signatories of the treaty. The need for a comprehensive treaty is less clear, however. The decision to seek a comprehensive treaty seems premised more on political choice than on any belief that ocean issues can most effectively be dealt with in a comprehensive package. Indeed, the comprehensive approach requires that ail issues be considered together, making tradeoffs from one issue to the next theoretically possible. At the same time, however, it gives each state access to additional political leverage by the threat of support withheld on other issues. This (the classic log-rolling phenomenon) can skew the distribution of votes such that policies and interests that might otherwise be satisfied are not adequately reflected in the outcome.

An Alternative Strategy: Limited Treaties If, however, the requirement for a comprehensive treaty is relaxed, a new series of options in the .foem of limited treaties becomes viable. A change in emphasis from a comprehensive treaty

4 ri to a series of limited treaties could be the result ofa conscious political decision, or it may evolve from thepresent situation as the need to resolve particular issues becomespressing. As a policy option, it has recognizable advantagesover the current policy. Depending on the grouping of the issues,a policy of seeking limited treaties could solve the timing problem. Asa consensus is reached on a particular issue or group of issues, it could be broken off from 11NCLOS discussionsandembodiedinalimitedtreaty. Meanwhile, discussions on issues which requiremore time to reach a consensus, such as the Committee I discussionson the seabed regime, could continue. Among those issues thatseem ripe for codification are the Committee II issues ofa 12-mile territorial sea, 200-mile economic resource zone, andsome form of guaranteed passage throughstraits. Aside from the seabed issues, the Committee III discussions on pollution, and variousfisheries issues would benefit from further efforts to achievecompromise and consensus. When considered separately,discussions on various issues would take on a newaura of independent importance which has been lacking to date at UNCLOS. Thepollution issue in particular would benefit from being considered separatelyfrom the other issues which haveprovenfar more salientto most delegations. The greatest advantage of a limited treaty approach would bethe possibility of combining relatively wide acceptance with sufficient detail to ensure ecologically and economically efficientmanage- ment of the ocean and its resources. The attempt to placate all interests on each issue under the comprehensive approachthe factor which more than any other has led to the inabilityto incorporatesufficientdetailinthe Geneva textscouid be abandoned in favor of including in limited, detailedtreaties primarily the interests of those states most vitally concerned with the issue at hand. It would be unrealistic to expect to haveas marly signatories on each of a series of detailed treatiesas on the sort of general treaty that UNCLOS delegates have sought, but relatively wide agreement wourd seem possibleon many of the current iss,s. Again, it must he stressed that even universal acceptance ofa treaty without teeth would have little long range valuc beyond the symbolic one. UNCLOS participants may prove hesita'o abandor the comprehensive treaty approach in favor ofa sries of r- ,re 'rred and detailed treaties. There will continue to besome states and some individual participants who want UNCLOS to fail, and other states who will continue to provoke ideological confrontation. Itis at least possible, however, that a majority of participantsmay

39 4 8 welcome a change in tactics, once it is generally recognized that the comprehensive treaty approach will not resolve many issues. If the break from thegoal of a comprehensive treaty became open, states IA hich gathered to consider specific issues would tend to be primarily those who shared important interests in the specific discussions. Negotiations should be less hamstrung by states playim; spoilers roles by attempting to win leverage on unrelated issues.. The smaller number of reservations to be expected with a limited treaty should present less danger of weakening the specific agreement than a myriad of objections to a more comprehensive package. From the I J.S. perspective the pertinent question is whether or not the strategy of pursuing limited treaties will enable negotiators to reach more (LS. policy objectives than the current strategy. Since limited treaties on some issues of concern to the United States could probably be concluded, such a strategy would seem to be a more favorable one than continuing a seemingly fruitless search fm a comprehensive treaty. The United States, unlike some states, would not face serious additional bargaining constraints from its inability to make tradeoffs from one package to another. In those areas in which U.S. negotiators find themselves short of bargaining chips the merit of the (IS, position may well speak for itself. Despite the hemed exchanges that have taken place in Committee I and elsewhere,the United Statesis normally credited with maintaining a global, relatively unselfish negotiating stance. Its views on distant water fishing, access to foreign zones for purely scientific research, and internationally supervised systems of access to migratory species may yet prevail dyer the more parochial provisions of the single negotiating text.

NOTES

1.11,11 r. ii. Lit% .,1 the tivii, A (:()NF l'arts 1,11, Ill. 7 NI.iv IT' t (it !! Nol...,(Itiatins4 Text %yds prestm1,41 liy the Gq11,1...n( v t the Genvvii syssion. Part IV offers .1 Ii.x1 tin 11,1111, .,111111.., is tml exclusive 1:11fh:f't 11 of any ii Ihe iltiun ; ,,,11,.n.t1, 0,,n the. Law Ihetie,i, A (. I )N1.112 WP.!1.i July 4 9 40 PART 11

U.S OCEAN POLICY: ISSUES AND OPTIONS

5 0 CHAPTER 3.

NATIONAL SECURITY

Introduction

U.S. security interests in the use of oceanspace can be divided into the maintenance of military security (including the protection of allies and American citizens) and thepreservation of vital economic interests. If the United States maintainsan adequate balance of military power in the strategic nuclear realm,at key points locally, and at sea, and if the constraints of detente moderate Soviet behavior, economic securitymay be the more critical concern in the next ten years. This section deals with economic security only as it depends on the use of sealanes to ship vital goods end resources and only insofar as itmay be jeopardized by restrictions imposed by other states and byan environment of anarchy and violence.1 U.S. military security interests, broadly conceived, lie in the effective use of four zones of ocean spacethe seabed, subsurface, surface, and the air abovein order to maintain an adequate strategic nuclear capability, maintain an adequate capacity to project American forces overseas in kcal wars. protect U.S. citizens, commerce, and access to vital resources in peacetime, maintain adequate intelligence and military surveillance capabilities, and protectthe sealanes, project forces abroad, maintain combat capabilities, and perform other naval functions ina more-than-local war. What kind of ocean regimethat is, whatset of norms, laws, and institutions governing the relations of states in theuse of the oceanshould the United States try to achieve in orderto attain these security objectives through theuse of the four zones of ocean space? (Since it can be assumed that the nature of this regime would make no difference in a more-than-localwar, only the first four objectives are regarded as relevant to the question posed.)

43 51 The Political Context

Evidently, the U.S. Government is determined to achieve its ocean security objectives in the context of a foreign policy that can be characterized as selective retrenchment (i.e., the reduction of the extent of U.S. foreign support and involvement) without political disengagements (i.e., the abandonment of existing commitments) in which the first concern is the orchestration of a global modus vivendi with the Soviet Union, undergirded by overall strategic parity. While reaffirming its pledge to shield allies and other friendly states from direct aggression by nuclear states, the United States has virtually ruled out direct participation in insurgent ars. Assuming a modicum of success in achieving these objectives over the next five or ten yearsthough this is an assumption bound to he challenged by surpriseswe must nonetheless assume that there may be local wars and crises and various situations jeopardizing the security of friendly regimes and the unhindered supply of petroleum and possibly other resources in which American armed force may directly or indirectly make the critical differences between the destruction or protection of vital interests. And even if the actual employment of U.S. armed forces remains only a latent and ambiguous possibility, the U.S. Government wants to maintain the credibility of American military power and to manifest that power through military demonstrations and maneuvers. It requires little imagination to apply this generaliza- tion to the Middle East.2 Only a lack of foresight preventsus from anticipating its relevance to other areas in a period in which nationalism,conflict,and warfaretrouble so much of the developing world. The world situations most likely to damage the United States' broad security interests, however,may be those which the United States cannot affect by military means, directly or indirectly, and over which it has little or no control by any means. These are situations in which American military mobility, military bases, access to oil, and less tangible security interests are damaged by the actions of the weaker and poorer countries, actions which the United States is inhibited from countering by force. Or theymay be situations in which the conflicts among other states accidently impinge on American interests. This latter type of situationwas demonstrated in the "cod war" between Britain and Iceland, which threatened to lead to expulsion of the NATO base from Iceland. If the frustrations and resentments of the developing countries

5, should be channeled toward harassment andpressure against the developed countrieswhether forpurposes of revenue, political influence, or just nationalist self-assertionthe UnitedStates might find its security threatened bya new kind of cold war. The dependence of the United States and its allieson oil and other natural resources and on straits,seas, and the rights of overflight controlled by developing countries, makes Americancommercial and military mobility particularly vulnerable. Thus,one of the primary I J.S. security imperatives may become the achievement of mutually advantageous and acceptable working relationshipswith coastaldevelopingstates. This achievement depends, more broadly, on assuring developing countries that theocean interests of the great maritime statesare not inconsistent with their own newfound pride and independence ina period in which the resource-rich countries of whatwe used to call the Third World (now enlarged to include the Fourth World ofresource-poor countries) are launched upon a determined effortto redress the balance of wealth and power between them andthe powerful resource-dependen ts.

Strategic Nuclear Interests

Among the specific ocean securi"y interests that the United States will try to maintain in the international politicalenviron- ment of the next five or ten years, the most important, thoughnot necessarily the most threatened, is preservation ofan adequate strategic nuclear balance. Here, the chief objectivemust be to maintain the effectiveness of'S. nuclear missile submarines (SSBNs(currently the Polaris Poseidon fleetbecause:(1) the installation of many indepedently guided warheadson missiles (MIRVs )and improvements in missileaccuracy increasethe importance of concealing missiles under theocean and (2) the case for free transit of international straits has rested heavilyon the security requirements of the U.S. underwater fleet, The 11.S. Government maintains that the invulnerability of SSBNs and hence their indispensable role inan adequate second- strike force depends on their right topass through international straits submerged and unannounceda right initially called "free" transitbutmore recentlycalled "unimpeded" transitasa concession to legitimate regulations to protect littoral states from the hazards of congested straits. Under existing law only"in nocent

45 5 3 passage," which requires surfacing of an submarines, would be legalin straitsthatfail within territorial boundaries. This distinction is considered very important since undera 12-mile territorial sea boundary perhaps more thana dozen straits of strategic significance would be overlapped by foreign territorial waters., But if we think of military necessity, not just convenience, which of the world's dozens of international straits that would be overlapped by 12-mileterritorial sea boundaries are really important for the mobility of the U.S. Polaris and Poseidon fleet from the standpoint of reachir. 'arget areas in the Soviet Union? If one assumes that such overlapped straits inside the territory of military allies would be accessible to U.S. SSBNs, only Gibraltar and four Southeast Asian straits (Malacca, Lombok, Sunda, and Omhai-Wetar) among international straits 24-miles wideor less would be essential for the passage of SSBNs to patrol stations and launching areas from which enemy targets could be reached. Soviet SSBNs, on the other hand, would have to be able topass through not only these overlapped straits but a number of others within the territory of U.S. allies in order to reach targets in the I (tined States. From this list, however, at least Malacca and perhaps Sunda straits should be eliminated as too shallow ark] congested to be safe for underwater passage. The two Indonesian straits, Lombok and Ombai-Wetar. might be closedto unannounced underwater passage of U.S. SSBNs in any case because according to Indonesia's interpretation of the archipelago principle of enclosed waters, they are considered internal rather than international waters.4 On the other hand, the United States seems to have a working arrangement with Indonesia for passage of SSBNs through its straits. Although the Indonesian government has argued that the archipelago principle does not infringe on innocentpassage, it requires prior notification of transit by foreign warships and has raised questions about the innocence of supertanker passage because of the danger of pollution. In spite of Indonesian jurisdictional claims, the United States maintains that the Indonesian straits are international. According to press accounts and Indonesian sources, however, the United States routinely provides prior notification of transit by surface ships and presumably (if only as a practical convenience) relies on some special bilateral navy-to-navy arrangement for submerged passage, consistent with the requirements of concealing the details of SSBN passage from foreign intelligence.5 Although this modus vivendi is rather contingent, it satisfies America's needs as long as an Indonesian governmentas friendly as that of Suharto is in power. 5 I 46 ;ibraltar presents a more complicated situation. Althoughthe strait is only 11.5-miles wide and Spain claimsa 6-mile territorial sea, its international character has been preserved by historic tradition and by the treaties of 1904 and1912 among Britain, France, and Spain to seCure freepassage. In March 1971, however, foreign rights of transit becamemore restrictive when Spain and Morocco agreed to cooperate tepromote the creation ofMediterra- nean awareness" and to consult on all matters of peace and security in the Mediterranean, particularly in the strait, In lune1972, the Spanish government announced at the LIN that the freezingof naval forces and subsequent progressive reductions in theMediterranean should lw considered. At time time, it indicated the necessity fur some compromise between free transit andthe rights of coastal states, such compromise to be achieved by a redefinition of the right of innocent passage. Thus Spain may have prepared theway for asserting a unilateral right to force submarines passing through theStrait of Gibraltar to surface. The effect of sucha claim on U.S. SSBNs, however, will depend primarily on the political relations betweenthe United States and Spain. As long as U.S. submarinesare based at Rota, submerged transit of U.S. submarines will be permittedthrough ;ibraltar. Moreover, even the closure of Gibraltarto unannounced submerged U.S. submarinepassage would not be disastrous to America's strategic capability. After all, thePolaris/Poseidon system can target the entire Soviet Union from the Atlanticand ,cific Oceans and the Arabian Sea. Although therehas apparently no need for SSBN patrols in the Indian Ocean, an Indian Ocean isesay, Diego Garciawould obviate the need touse Gibraltar or the Indonesian straits altogether. Even if Gibraltar, Sunda, and the two Indonesianstraits might be closed to unannounced underwater transit ofU.S. SSBNs under ex is ting interpretations of "innocent passage," would surface transit seriously impair the security of SSBNs? Undoubtedly, underwater transit makes SSBNs farmore difficult to detect and identify.Butitwould still be extremely difficultto track submerged submarines after they passed throughstraits. And it is unlikely that detected passage through straits wouldenable the Soviet Unionto impair significantly the U.S. second-strike capability, since that wouldpresuppose a Soviet capacity to locate and destroy simultaneously most of the 20to 25 U.S. SSBNs on station all over the world. Furthermore, the projected deployment in the 1980's ofthe Trident SSBN system, in which each submarinewculd carry 24 MIRVed missiles with a range of 4500-6500 nautical miles. would

47 virtually eliminate the dependence of the U.S. underwater nuclear force on passage through international straits. To lw sure, there are operational disadvantagesquite apart from tlw problem of detectionto surface transit, in that this makes SSBNs vulnerable h) collision in high-density traffic. But this disadvan tage could be avoided. of course, if the United States would give advance notification of underwater passage. So it is not the safety hut the necessity of secrecy (0 .,:a ter passage that is ult imately in question. In declaring the neu!ssity for t, sit of straits, U.S. officials have referred not only to ti secret passage and to the safety of submerged passage bw also to the prospect that, without an international treaty prescribing unimpeded transit, straits states might resortto "subjective" (that is, politically inspired) interpretations of innocent passage to restrict the passage of U.S. warships. Thus Iohn R. Stevenson, speaking as chief of the U.S. delegation to the Law of the Sea Conference, testified before Congress that ''We would not contemplate notifying (1:1 t ora I states of intention to transit stra its! because if such a ii:quirement is introduced, there is of course ultimately risk of this leading to control of transit through straits."0 This risk, Stevenson said, lies mostly in the future, and he cited no case in which the requirement of advance notification had been used to restrict naval transit. The risk of restrictive interpretations of innocent passage, however, applies largely to commercial vessels on grounds of navigahonal safety and antipollution. Safety and antipollution would seem to be objectively important grounds for controlling the passage of ships. But if there is a real danger that littoral states will interpretinnocent passage and the requirement of advance notification in order to deny transit of straits to American warships for purely political reasons, it is hard to see why these states would sign a treaty prescribing unimpeded passage or be deterred by such a treaty. Aside from SSBNs, there are other components of the S. strategic capability that deserve attention. In the controversy over unimpded transit through straits, the issue of overflight has been virtually ignored in public statements, although the U.S. position on the law of the sea treaty, presumably for strategic reasons, prescribes unimpeded transit over straits for military aircraft. (International law does not recognize innocent passage for overflight.) According to the prevailing official Triad nuclear deterrent system, the U.S. strategic nuclear capability requires manned au craft as well as SSBNs and land-based missiles. The 5 (; 48 U.S. strategic bombing force is still a significantweapons system, with some distinct .olvantage of mobility and of controlrespunsive to political guidance. On.: might suppose that effective denidl military overflight over key straits woulu seriouslyimpair (he utility of the (I,S. str:tegic bombing for(:eas a 'leterrent. In practice, however, the right ti fly over 24-mile straits hasnot proved critical to the U.S. strategic bomber force (as distinguished from the IS. military airlift car ibility). Overflight of straits is only a small part ot the path 'n of overfligh;, managed byspecial arrangements, where necessary, and physically infeasible for most states to deny in any cilst.:In any even', as in the case of submarines, local restrictions on strategh: overflightare relevant to routine maneuverand deployments and perhaps to military demonstrations. They wield not bean obstacle to acts of war. The emphasis in American policyon unimpeded transit ander, through or ovci: international straits has somewhat overshadowed another official concern: taat the U.S. strategic apabilitymay be hampere:l by territorial or continental shelf jurisdictions claimed or established iy coastal states. Some contend that the 'ireadth of the continental shelf under national jurisdiction wou, ' adversely affect thefreedom of the United States to place passive ASW listening devices(Sound Surveillance Systems, or SOSUS) on the shelf, particularly off the shores of foreign countries." Apparently, these devicesare most effective beyond the 200-meter depth and partway down the slope of the shelf," although their effectiveness also dependson the peculiar acoustic properties of theocean at various temperatures, depths, and salinity and particularlyon the depth of the sound channel that focuses sound energy in deep water. Presumably,the United States would hesitate to place SOSUSon shelf areas restricted by existing international lawor protected by a new international treaty. Therefore, if SOSUS is vitalto America's strategic capability, any ocean regime that extended territorial sovereignty over the whole continental margin might adversely affect[S, military security. Whatever the military importance of ASW,10 hydrophonearrays on the ocean botton are (and will remain for the .1ext five to ten years) critically important to the U.S. ASW capability. These acoustic devices may he physically susceptible to Soviet interference, but it is safe to assume that the Sovietsare installi^n. many of the same kind of devices and therefore have a vested interest in not interfering with those of the United States. Most developing countries do not have the capability to locate and destroy the arrays. In any case, the United States denies thatit has 5 el 49 placed them off their shores without their consent. These facts notwithstanding, it seems unlikely that the utility of SOSUS would be critically impaired ?Nen by the broadest boundary of coastal-state sovereignty on the continental shelf. The crucial monitoring areas where SOSUS needs to be emplacedone would assume from those submarine passageways where the devicesaremost usefulare the Greenland-Iceland-United K ingdom gap. the Arctic, the North Pacific, and the Caribbean. With the possible exception of Iceland, enough of the Northern European countries are concerned about the Soviet SSBN force to permit U.S. listening devices in the area. Considering the extent of the shelf off AlipAa and Canada, the emplacement .tf hydrophone arrays in the Arctic would not be severely restrict9d by a shelf convention. By its ri,;session of Guam, Midway, Hawaii, Alaska, and the Aleutiar sthe United States owns a significant amount of underwater re' t state on which to emplace listening devices in the North Pacific. Whatever gaps may exist in this coverage would no seem to be much affected one way or another by extended claims to the continental shelf. Only in the Caribbean and the Gulf of Mexico would a broad national shelf be likely to restrict U.S. coverage. U.S. coverage in these areas is limited anyway, since Cuba blocks it from the continental United States while the Dominican Republic lies in the way of coverage from Puerto Rico. In any case, as noted above, since hydrophones have to be connected to shore stations (or, at great expense, to surface ships), the United States generally needs the permission of coastal states to emplace SOSUS on their continental shelves, whether within or beyond !he territorial boundaries claimed by these states. It should also be noted that an extension of national claims to the shelf edge probably would do more damage to Soviet than to American acoustic installations.It probably would be difficult to find a government beyond the Norwegian Sea that would consent to Soviet devices on its shelfnot to mention objections by Canada and japan (although the effect of this fact is limited by Soviet ownership of the Kuriles). The implications for SOSUS are the same even if national regimes encompass the continental margin. However, the bottom topography near Iceland makes it difficult to determine the precise limits of the shelf, margin, rise, etc. There is yet a third possibility if no satisfactory new international regime is agreed upon. The 1958 Convention on the Continental Shelf states in part that "the term 'continental shelf' is used as referring. ..to the seabed and subsoil of the submarine areas adjacent to the coast to where the depth of the superjacent water admits of exploitation of the natural resources of said areas."

50 ti Since the technology for exploiting all but the deepest trenches soon will be available, this could eventually lead to a delimitation of the seabed on the basis of median lines drawn equidistant from states sharing a common ocean. In this event, the United States would own most of the North Pacific seabed (although it probably woul(l not be useful for more listening stations); the United States, Canada, and the U.S.S.R. would divide the Arctic; the situation in the Caribbean would not be greatly altered; and Norway would own much of the seabed beneath the entrance to the North Atlantic. Finally, in estimating the impact of alternativeocean regimes on America's military strategic capability, one must take intoaccount the effects of extended territorialsea boundaries and other kinds of offshore zones. These effects, of course, depend in partupon what sort of restrictions coastal states choose to claim andare able to secure by consent or force. Added to the proliferation of extensive offshore territorial claims, coastal statesare looking increasingly to antipollution, security, and other functionalzones to restrict foreign navigation, both military ,md civilian. Moreover, in the absence of a comprehensive and widely accepted law of thesea treaty defining rights of offshore navigation, coastal states might resort to regional or local treatieson the model of the Montreux Convention or a version of the Soviet doctrine of "closed seas" that will severely restrict the numbers, types, and transit methods of warships belonging to nonsignatories. Assuming, then, for the sake of analysis, that more and more coastal states will be tryingto apply more and more restrictions on foreign militarypassage within 200-mile offshore zones, whatare the implications for America's strategic capability? If one were to select a 200-mile region to impede American naval passage and have the greatest effect on America's strategic capability, it would be the Arctic, given the premise presented here that the Mediterranean is not indispensable to America's strategic nuclear capability. But even with 200-milesea boundaries, access to the Arctic would be possible through the Eastern Bering Strait and the Kennedy-Robeson Channels (given Canadian compliance). In the Atlantic, patrols could still go far north within the 200-mile boundary around the Shetlands. In Indonesianwaters, a 200-mile boundary would not be much more restrictive thana 12-mile boundary, since Indonesia defines its boundary accordingto a broad archipelagic doctrine. In anycase., Poseidon missiles could still target all the USSR from points 200 miles off Bangladesh and japan and in the southern Norwegian Sea. More important than the impact of restrictive territorialzones and special seas on SSBNs may be their impacton the integrated

51 5 9 operation of fleetssuch as the Six th Fleet in the Mediterranean hich hav estrategicfunct Mns beyond providing launching platformshit.missiles.It should he noted, however, that the strategic function of surface ships, apart from their political and psychological uses, has been drastically eroded by technological advaill.es in at ko:k submarines, surface ships, and aircraft.

Moreover. it is worth noting that coastal state reslrictions would hav e a much more adverse impact on Soviet than on American strategic mobility. If. for example, the restrictions applied to the current narrow sea 1mundaries were applied to 200-mile boundaries, Sov let SSEitis would be restricted to half of the Arctic and to operations from Petropavlovsk. Suhmerged passage to the Atlantic would be prohihited. l'he Caribbean and the southern exits from the Sea of Japan would be closed. Soviet fleet maneuvers would be correspondingly more impeded than American by the proliferation it eXtrrislve restricted seas, antipollution zones, and the like.

What, then. are the implications of all these considerations for the otection of Anwi ican strategic interests under alternative ocean regimesIlnquestionablv. America's strategic capability with respect tn the Soviet 1 !mon would be better off under an effective, universallyapplicable law oftheseatreatythat provided unimpeded transit through international straits, established a narrow continental shelf boundary. limited territorial sea boun- dariesto 12miles, and explicitly protected military passage thniugh antipollution ilnd other zones, than Ander the more-, restrictiv eregimes we have postulated. 13ia even the most restrictiveof these regimes would not undermine America's strategic capahility on the ocean, regardless of whether the Trident system were inoperation. Moreover, the adverse impact of restrictive regimes on Soviet ocean-based strategic capabilities wouhl he far more severe than on American capabilities, although with America's greater strategic dependence on the sea, U.S. naval leaf lers cannot be expected to gain much consolation from this comparison. Finally, it should be noted that the most important military strategic problemmaintaining the security of U.S. SSE3Nsarises critically with respectto only three or four international straits, where modi vivendi now resolve the problem in practice and where there is litt lr reason to suppose that the key states would provide more protection for unimpeded underwater passage by accepting legal guarantees. 0 52 Other Security Interests

Itthese assumptions about the political context of American security interests are correct. the United States must he prepared for an indefinite period to maintain a globaloverseas military capability to respond quickly to a variety of possible crises and localconflictsinthe Third World. This kind of capability presupposes great military mobility in ocean space. Therefore, we must be 1:oncerned about the impact of the changing technological, legal environment of ocean space on naval navigation and overflight. If a local crisis or conflict were sufficiently serious to involve the deployment or threatened deployment of American naval and air forces. would either the claims of sovereignty and control imposed by coastal and straits states or the United States willingness to respect such claims be affected critically by the legal status of territorialImundaries andstraits?Presumably,the answer depends on the seriousness of the crisis, the strength of the adversary, and the total political contAt. Onecan readily imagine local contingencies in which the United Stateswas not prepared to take major risks of war and would feel compelledto honor proscript ions against passage of U.S. warships and aircraft applied by nonbelligerents. The denial of American overflight bya number of friendly nonbelligerents during the Middle East War of 1973 makes the point, although denial of staging baseswas in that instance even more critical. If cold war tensions remain abated and the sources of local conflict in the Middle East and elsewhere continue to remain active, the United States must be prepared for a number of local crises in which it may wish to deploy force but in which it cannot count on the cooperation of allies andmay be deterred by the opposition of small states. Indeed,even outside the context of a local crisis. a coastal state may harass U.S. naval vessels, as the case of the Pueblo demonstrates, If coastalstates come to think of a 200-mile economic zone as virtually an extension of their territory, the United States might not he able to relyon them to respect the sovereign immunity of warships in a very extensive part of the ocean. Nevertheless,itis probably farfetched to suppose that the possibilities of coastal state irnpedence of U.S. navalpassage depend centrally on the legal balance between maritime states' rights of navigation and coastal states' rights to protect themselves from pollution, shipping congestion, and the like. Obstructing the passage of a naval vessel is an act of major diplomatic significance. 61 53 If a foreign state is willing to run the risk of taking such an act against the known opposition of the United States, the resulting encounter will hardly be a conflict of law; nor will international agreements on ocean law prevent such an encounter. Similarly, irnpedence of U.S. military overflight, whatever the law may be, is a highly political act. Whether or not the United States acquiesces in denial of overflight for its military airlift would be determined, essentially, by a political calculation, not a legal interpretation, although the government might be emboldened to make such a calculation if it were acting in accord with a widely accepted international treaty sanctioning unimpeded flight over international straits. The impedence of commercial navigation, on the other hand, can be more readily undertaken in the name of legal rights to protect the security and environment of coastal states without creating a state- to-the-state incident. Six or seven of the world's international 'straits of major economic significance could be affected by states that might impose costly, inconvenient, and perhaps politically- inspired restrictions on the passage of goods and resources valuable to the United States." Moreover, there are practical incentives for states to impose such restrictions. As some of the developing states become significant local and regional military powers (with the indispensable help of arms sales from the devel(Iped countries), they are likely to become more concerned with the security of their territorial waters, especially if these waters are rich in scarce resources. In any case, the lure of new sources of wealth in the oceans is leading to wider jurisdictional claims and more conflicts over the allocation of ocean resources. Some of these conflictsGreek and Turkish differences over the Dodecanese, disputes between India and Sri Lanka, actions like China's occupation of the Paracel group or Iran's occupation of Abu Musacould result in violence. Even if such claims and conflict ,; tio not d:rectly impinge on U.S. naval mobility and vital sf'ipping, they could create a turbulent political environment in which coastal states would be disposed to restrict military and commercial navigation unilaterally. The unilateral extension of zones of protection at sea will be further reinforced by the concern of countries to police and regulate their coastal areas not only for security reasons (e.g., to prevent shipment of arms to dissidents or to counter offshore intelligence operations) but alsoinordertoprotect offshore economic activities, prevent pollution, and limit the hazards of shipping congestion. In this era of supertankers and expanding oil shipping,

54 6 r?.. one does not need to assume special politicalor nationalistic motives to explain this concern. The expansion of offshore oil and gas extraction will provide an additional reason to police and regulate waters that used to he consideredareas of free navigation. Thus the United Kmgdom has establisheda 500-meter safety zone around its North Sea oil rigs, in accordance withArticle 5 of the 1958 Geneva Convention on the Continental Shelf. In thefuture we can expect the pressure of population growth, industrial landuse and onshore pollution to increase incentivesto move urban and industrial activitiestosea. Already, fertilizer plants, waste disposal facilities,airports, and oil storage tanks are being constructed offshore. With the expansion of offshorefacilities will go the creation of extensive zones of protection. I f supertankers and offshore petroleum andother installations should become targets for terroristsandin this period of history one must assume that this is not unlikelycoastal states (the United States included) will have anotherreason to maintain order in offshore jurisdictions, and other states willhave additional cause to object to coastal state restrictions and regulations. Then, too, in future local warswhich in theThird World may well increase in number and perhapsin intensitythere may be assertions of blockade (as in the Indo-Pakistaniwar of 1971) and other restrictions on neutral shipping,including sabotage and terrorism. As technological developments and the political atmosphereare turning in favor of coastal state restrictions against freecommer- cial passage by the United States and othermajor maritime states, the local military balance has also turnedto their advantage. In the last decade the acquisition of many types of surfaceor submarine- launched anti-ship missiles (SSMs) bymore than 40 naviesadded to mines, torpedoes, small submarines, shore batteries, andother weaponshas made even the most powerful surfacewarships vulnerable to small craft innarrow seas.tz The law of the sea is unlikely to deter small states from using this local navalcapability to hack restrictions against U.S. commercialpassage. But if the legal regime, whether by customor treaty, favors coastal state regulation to the exclusion of rights of navigation,this would encourage harmful restrictions and either discourage resistance to them or make confrontationmore likely. Clearly, these trends could impair the shipment of oil andother vital resources. They could pose massive inconvenience and serious cost to U.S. commercial shipping, and they could becomea chronic source of conflict with coastal states. Whether theywould

6 :I' ever impair commercial shipping to the point of jeopardizing American economic security one may doubt. If coastal states should have a sufficiently cornpelling incentive to impede ocean commerce of vital interest to the United States, one would expect them to resort to more drastic and effective measures, like an embargo. Nevertheless, if only to raise and clarify the threshold of restrictions that would impinge on American economic security, the I lnitNl States needs new international laws and regulations, responsive to the legitimate interests of coastal states, that will enable it to conduct essential commercial activity on the ocean withouz getting into political conflicts and physical encounters. Perhaps the principal contribution of a widely-accepted LOS agreement would be to mitigate the danger that clashes of interest between the developed maritime states and developing coastal states might so embitter the climate of their relations as to make more likely the kinds of confrontations that would impinge on U.S. military and economic security.

Moth Vivendi

Consideringthedifficultyofestablishinginternational agreeuwnts to regulate all the expanding uses of the sea, itis fortunate that formal agreements do not exhaust the remedies for protecting U,S. ocean securityinterestsintheuncongenial environment postulated here. There are,for example, more informal modi vivendi. Some kinds of arrangements that accommodate U.S. and coastal or straits states interests may be more readily reached if they are not made the subject of international legal agreements at this stage of the developnlent of a new ocean regime. For example, there now seems to be a inodus vivendi between the United States and Indonesia that works fairly well although (and perhaps because) jurisdictionaldifferencesarenotformallyresolved.The cumulative effect of Indonesia's determination to become the dominant Southeast Asian power, its uneasiness about expanding Soviet Naval activity and Soviet alignments with India, its latent fear of rapan, and its dependence on an American presence in Southeast Asia (reinforced by American economic and military assistance) is likely to be of paramount importance. Judging from this case, such basic political factors will have more of an effect on U.S. and Indonesian ocean interests than any law of the sea treaty. Similarly, the protection of American naval and economic

6 4 far moredependent on good interests in thePersian Gulf seems drive that ;n a n,wlaw of the seatreaty. Iran's relations with ban which two-thirdsof the shipping in OleGulf, through with the for tontrol of imports pass,tends to conflict non -Communist Thus in March1973, Iran fnt unim.led passage. insped all t I.S. preposal ploriug an agreementwith Oman to was reportedto be e the entrance ofthe throuoli the Straitsof Hormuz at ships passing oolitics regardIran's announced conc,ern t;ulLObservers of v;oif secondary to its concernabout Arab of poltution as to about the threat Iranian rebels.Iran's inclination sapplying ..:rms to to an ideallaw governmentsshipping in tieGulf may run counter seek control o the billions in armsthe United ot the sea treaty,but, considering in the Gulf,Iran's ided L'an to bolsterits supremacy States has priA with the officialdefinition of viewe-I as consistent States policy must the.Gull Indeed,if the United Americdr- sectirilyin ierests in in the area, si.rrogate forU.S. naval power relies on Iran as a be a prerequisitefor protecting Iral:ian controlot the Gulf may Aineric.n interestsin the Gulf. securing militaryoverflight may Sim:tarty, theproblem of treaties. As inthe informal modivivendi as on depend as much on be a great assetto secure surface navigation,it would problem (;asy of straits. In practice,however, the unimpeded passage over is politicallyand essential mobilityof overflight of securing to gainingpassage overthe geographicallyconfined, principally problem willdepend Gibraltar. Resolvingthis kind of Strait of with a few keystates. If thesestates primarily onpolitical relations straits, they arenot likely to unimpeded transit over the sea do not favor of bargainingat a law of sign such aprovision because unreservedly opposedto Ifthey are not chance to treatyconference. States mighthave a better unimpeded transit,the United itIternatimuil satisfactory modusvivendi outside an arrange a multilateral orbilateral ti'eaty. conference thanthrough either a

Unilateral Force

protection for oceansecurity interests In the absenceof adequate the kind offree law of the seatreaty sanctioning the by a universal the U.S.Government seeks, navigation andunimpeded passage protecting the troublesomeprospect of United Statesfaces through ad hocbilateral and American oceansecurity interests ocean policymakers Understandably. U.S.interests on treaty- regional arrangements. of American ocean prefer to basethe protection

57 6 3 made lawsthat apply rather than as generallyand on less binding unambiguouslyas possible alignments and arrangements basedon fragile United Statescustomary law.Lacking such political inust eitheracquiesce to laws, theyfear, the jurisdictionalrights that claims bycoastal forcibly constrictAmerican states of contest suchassertions. At ocean mobilityor must operatein an the least,the United wars among uncongenialenvironment of States otherstates. confrontationsand This fearis overdrawn insofaras analogue ofterrestrial itenvisions jurisdict ion wars over a maritime in earlierperiods of boundariesand dynastic foreseeing the history, butit is not dt sea. Therepossibility ofmounting unrealistic in have already crises andarmed 1945.4 Even been dozensof such encounters the greatpowers' encounters since tneir interests well-knownconstraint in preclude against theless developed enforcing limited naval countries does dependson a calculus encounters. After not of material an, thisconstraint May changewith changing and politicalgains and the United conditions.Thus, the losses tat States forciblyprotecting politicalcosts of the claimsot sovereignty Americantuna fishers compared by Peruhave always against to vhat couldbe gained seemedexcessive what wouldbe lost by suchdrastic from this without them.But it would measures and situation thatthe United he a mistaketo infer in the faceof some States would threat toa more serious be equallypassive militarysecurity economic exclusive interest.Likewise, interest orto a fishingzone claim, Britishresistance to between which hasled to Iceland's Icelandiccoastguard ships a number ofclashes demonstratesconsiderable and British that amaritime Britishself-restraint escorts, state willnot necessarily but alsoshows assertions bya small passively important state ofa conflicting accept the economicinterests ocean regimewhen othermeans. are at stakeand cannot be securedby Wheremilitary the maritime security, ratherthan fishing states havebeen bolder rights, isinvolved, most frequent in backingtheir interests. gathering. examples ofthis have The Despite North occurred inintelligence the I InitedStates Vietnam'sclaim toa 12-mile was only I acknowledgedthat the boundary, I miles offNorth Vietnam U.S. destroyerMaddox Tonkinincident. In shortly before been reluctant othercases, the United the first Gulfof to fly aerial States hasnot always jurisdictionalclainis intelligencemissions that over coastalstate waters. contravene In thepast decade, fishing rights there havebeen several powers haveinterventions andcold cases (excluding exercisedtheir navalwar crises) inwhich maritime superiorityto support 6 6 their 58 definition ot freedom of the seas. In 114 1951, whenan Egyptian Corvette intercepted and damaged a British merchantman in the (1ulf of Aqaba during an attempted blockade of Israel,British destroyer flotilla was deployed to the Red Sea. Two weeks later Britain and Egypt reached an agreennint on procedures for British shipping inthe (ndf. In February 1957, American destroyers patrolled the S;raits of Tiran and the Gulf of Aqabato prevent Egyptian interference with American merchant shippingen route id Israel. On December 13, 1957, President Sukarno's government enunciated Indonesia's archipelgo doctrine. Less thana month later, Destroyer D vision:i 1passed through the Lombok and Makassiir Straits to reaffirm the U.S. riet of innocentpassage. On loft 21, 1961. following a bombardment by French naval aircraft,a French cruiser-destroyer group force.'he entrance to the Lake of Bizerta. thereby lifting a Tunisiar J(.k ad e of the naval base and reestablishing French control. Folii,wing Egyptian closing of the Straits of Tiran in May 19117, the U.S. Sixth Fleet concentratedin the Eastern Mediterranean while the British admiralty announced that the carrier H.M.S. Victorious and other unifswere being kept inthe Mediterranean -in readiness againstany eventuality," although the threat was not carried further. In May1975, the United States marines forcefully recovered themerchantship Moyoguez and her crew from capture by the Khmer Rougeon the high seas. although within the territorialwaters of an island claimed by Canthodia. On other occasions, maritime powers have simply ignoredor rejected coastal state claims against their activities. The People's Republic of China routinely challenges U.S. vessels in the Lema Channel en route to Hong K orig. and the U.S. vesselsroutinely disregard these challenges. Despite protests from othernations, France enforces restricted zones aound its nuclear testing siteat Mururoa atoll. During the Algerian War, she undertook visit and search of the flagships of more thana dozen nations, on some occasions as far away as the English c.hannel. There are also numerous examples of armed coercionat sea that have not involved a major maritimepower, for eXample, the Chinese ticcupation of the Paracelgroup, the Iranian occupation of Abu Musa, India's imposition ofa blockade during the 1971 Indo- Nkisteini war. There are a number of situations in African,Asian, and Latin Amern, ,% aters f,-om which similar confrontations and even limited warat sea T' 'ght arise. Some might directly or indirectly impinge upon America's shipping and other maritime interests. One must conclude that if jurisdictional claims of coastalstates should jeopardize American economic or security interests in the Third World, the United States would not necessarily be deterred by immediate political costs from supporting its ocean interests with force. This would be true especially if the clash occurred Out of the context of U.S.-Soviet competition, something increasingly likely to he the case. Nevertheless, the resort to force at sea is probably more likelyto occur among weaker countries than between the powerful and the weak, considering the greater prospects forjurisdictional,territorial, and political disputes among such IA eaker states; the relative importance of such disputes to smaller states: and the relative lack of alternative means that less developed countries have for coping with such disputes. In the absence of a widely accepted LOS treaty, therefore, one may expect a new ocean regimc to emerge from the gradual and uneven development of customary law. through unilateral actions punctuated by small wars and test encounters over decades. But even if many of the jurisdictional causes of armed encounters are settled in an international treaty, the United States, like other states great and small, can he expected to resort occasionally to the unilateral use of force at sea in order to enforce its view of legal rights and vital security interests. This situation, however, need not result in widespread anarchy and violence. A growing number of states realize their practical stake in avoiding disorder and confrontation. Coastal states and maritime powers have important common interests in preserving the flow of commerce, and neither group is yet united or fixed in opposition to the other. As the oil producing countries of the Third World begin shipping petroleum in their own tankers. they are discovering a common interest with the developed maritime states in unimpeded passage. The question, therefore,is not just how to create a new ocean regime by a comprehensive treaty but how to achieve new rules and regulations for the use of ocean space by treaties, modi vivendi, national legislation and pronouncements, and unilateral action with the least degree of confrontation and the greatest degree of international consent.

UNCLOS III and the Single Negotiating Text

Before considering alternative anproach,ts toward achieving a new ocean regime compatible with U.S. ocean security interests, we need to take into account the most re.:ent effort to achieve a treaty at the (;eneva session of the Law of the Sea Conference in the

60 Spring of 1975. Not that this Conference enablesus to predict precisely what kind of treaty, ifany, may sooner or later emerge; but it does highlightsome trends that indicate the international negotiating environment within which the United Statesmust pursue its ocean interests by treaties or other means. In the draft articles of the "single negotiating text"(SNT) that emerged from Committee I (seabed mining) thereisnothing that indicates trends directly incompatible with U.S. securityinterests, Activities in the area of the seabed beyond nationaljurisdiction shall be reserved exclusively for "peaceful purposes"(Article 8. paragraph) ). but this does not restrict the prevailinginterpretation that passive ASW devices can be placedon the seabed beyond national jurisdiction without consent of the coastalstate. Nor do the draft arrcles of Committee III(environment and scientific research) indicate trends adversely affectingU.S. ocean security interests. Rather they indicatesome progress toward specifying and refining the rights of coastalstates in setiing pollution standards in their territorialseas, in accordance with internationalregulations,while explicitlystatingthatsuch standards may not limit innocentpassage (Article 20, paragraph 3, under the environment section of part 3)or affect warships (Article 42). Since 1972, the United States has moved far in itsLOS position to qualify rights of navigation with suchresource rights of coastal states. The draft articles of Committee II (limits of nationaljuris(ic- tion ),on the other hand, confirm a trend toward restricting navigation in the proposed 200-mile exclusive economiczone that might impinge upon American securityinterests. Article 48 gives coastal states the exclusive right to regulate theconstruction, operation, and use of artificial islands and installations (it doesnot qualify "installations" with "economic"or any other adjective) which might interfere with the rights of the coastalstate in this zone. A restrained interpretation of this provision mightnot intei fere with 11.S, security interests. Theprovision need not jeopardize the U,S. AsW capability if U,S. underwatersurveillance technology is now sufficiently advancedto monitor effectively heyimd 200 miles of nonalliedcoasts, or ifas argued abovethe luited States has plenty of itsown and allied underwater real estate on which it can emplace listening devices to monitorthe crucial submarine channels. Nevertheless, Article48 does indicate iftrend toward increasing coastal state restrictionsin a broad ec000mit zone, restrictions which could becometantamount to those in a territorialzone. Somehow the United States will have to come to terms with this trend or be prepared to ignore itor resist it.

61 6 9 So far, however, coastal states have resisted the radical disposition to make a special point of prohibiting military facilities and naval passage; and they have even gcne out of their way to affirm the sovereignimmunityof warshipsperhaps becauseofthe prominence of developing country military representatives, who are concerned about their own freedom of military activity. In this climate of North-South relationsthe prospect of a mutual accommodation of foreign military and coastal state interests in the economic zone is fairly good. Committee II also produced draft articles that scem to codify restrictions on passage through territorial waters and straits which the UnPed States once found unacceptable. Article 16 defines innocent passage through territorial seas to exclude a nuniber of specific acts, such as "collecting information to the prejudice of the defence or security of the coastal state;" the launching, landing, or taking on board of any aircraft or military device; and conducting research or survey activities of any kind. Under Articles 40 and 124. passage through straits and archipelagos within territorial waters can be confined to sealanes or traffic separation schemes determined by a straits state in accordance with international regulations. In Article 44 innocent passage (ratl,er than the less restrictive "transit passage") applies to straits connecting one area of the high seas or economic zone and the territorial sea of a state, such as Tiran and Messina. These provisions signify a trend toward codifying coastal and straits state restrictions on navigation for security, safety, and protection against pollution; and this is a trend that may pose some danger to U.S. security interests insofar as itis sustained by unilaterai claims and actions. But embodied in an international agreement, such provisions might at least stabilize the limits of coastal state regulation and make undefined and perhaps politically inspired restrictions less likely. The United States has accepted the principle that transiting ships should comply with international regulationsforsafety and against pollution while conceding that bordering states should enforce these regulations against violations.15 In any case, these particular provisions do not, in themselves, undermine American ocean security interests if the foregoing analysis of what these interests require in terms Of SSBN passage, ASW emplacements, and naval and commercial navigation is correct. Moreover, the SNT does recognize a right of unimpeded "transit passage" through and over straits between two areas of the high seas or between two economic zones for "the purpose 01 continuous and expeditious transit." This provision meets the essential military security needs of the United States. ;) 62 And the provisions on transit and innocent passage go far to protect U.S. economic security interests, insofar as internat:onal law can prote::t unimpeded commercial passage. Underlying this favorable development is the convergencr of U.S. interests with recently discovered shipping interests rf the oil producting states and Nigeria. On the other hand, there is no indication that some key straits statese.g.. Indonesia, Malaysia, Spam, Morocco, Yemen and Omanwill accept the straits provisions. l'he SNT provisions coining out of Committee II represent only a consensus of moderate views, with very little conCession to the more rad,..al demands for regulating straits and economic zones. Itis fairly clear that the United States is not g,:ing to get a treatywhether bilateral,multilateral,or comprehsnive and widely acceptedthat willprotectfreenavigation through territorial seas and unimpeded passage through international straits without concessions to coastal state regulation similar to the provisions in the SNT that emerged in the sessionat Geneva in 1975. These concessions are not inCompatible with essential U.S. securityinterests.IIseems unlikely, however, thatfurther concessions of this kind will gain the adherence of some key straits ,dates to the text's provisi, for "transit passage," since these states are not champ:orp. coastal state regulations in the economic zone. The SNT also shows some progress with respect to the closely related issue of defining unimpeded passage through archipelagos, bid the bargaining situation on this issue (including a conflict between continental and island archipelago states) is so uncertain and the provisions tiemselves are so complicated and subject to rev ision that the United States cannot count on a satisfactory resolution in a treaty. On the whole, the SN I favorable to U.S. occan security interests. At leastitprovides a favorable basis for further negotiation. One cannot predict, however, thatthe '-vant provisions will be embodied in a widely accepted treaty, vv nether comprehensiv e or limited. For one thing, the linkages of these provisions to provisions dealing with other aspects of ocean use may produce an unacceptable package. Thus, the articles coming out of Commit tee II may be unacceptable to many developing states without concessions thatare unacceptable to the developed maritime states with respect to the composition of the controlling group proposed for deep seabed mining in Committee I. Therefore, one should assess the results of the Geneva session

63 not only in terms of the prospect ofa comprehensive, detailed, and widely accepted treaty but also interms of the environment of internationid Mean ptilitiCti within which the UnitedStates will continue to pursue its security interests by bilateral andregional agreements, mmius vivendi, unilateral legislation and action,and the variety of measures from whichcustomary law develops. From this standpoint the SNT isan auspicious event.It shows that international ocean politics are not polarized ina North-South or coastal-maritime division but nither that they manifesta process of change and differentiation of nationalocean interests. And it also shows that this process of change kinddifferentiation creates convergences of U.S. and foreign interests that are congenialto the eventual widespread acceptance ofa new ocean regime compatible with U.S. security.

U.S. Options

The foregoing imalysis indicates that concessionsto increased regulation of territorial waters and straits for thesake of security, safety, and freedom from pollution wouldnot undermine or even seriously interfere with Americanocean security interests, with the possible exception of the envisagedexclusion of unqualified foreign installations and activities in theeconomic zone. Indeed, such concessions might lw the basis for definingthe outer limit of coastal and straits state rights of, regulation andthereby help stahilize ocean relations hetween the UnitedStates and coastal states. Such concessions might take the emotional fireout of "North-South" issues and further encourage some developing states with maritinw and shipping intereststo identify convergences ofinterestwith the United States and other developed maritime muntries.

On this p,routul, therebire, it can be argued that the UnitedStates would benefit from widely accepted international treaty with provisions for navigation and overflight similarto those in the SNI. These provisions representa I easonably favorable balance of power and interests in the world, given the inhibitions against the great states enforcing a broader view of Their vitalocean interests against coastal and straits states. Therefore, fixing thisbalance in law wouhl, at the least, lw better thanno treaty at all. Such reaioning ,,vould he based on the assumption that America's vital Mean interests depend centrally upon accommodating minimum dilll legitimate coastal and straitsstate concerns so as to avoid a

7"., kind of cold war with developing states that would damage American security far more than the legal concessions in question. It is also based on the assumption that the chances of getting an advantageous treaty are diminishing, not increasing, with the passage of time. If a large number of coastal and straits states find such treaty provisions acceptable, should the United States pursue a treaty limited to defining the territorial sea, rights of navigation and passage in straits and territorial seas, and rights and jurisdiction in the exclusive economic zone; or should it try to achieve such provisions as part of a more comprehensive treaty? An outsider is in no position to prescribe the linkages of issues that will enhance bargaining power and the likelihood of agreement. It does seem from experience, however, that America's bargaining power to achieve acceptable navigation and transit agreements will not be enhanced by linking such provisions to the whole array of provisions heretofore sought in a comprehensive treaty. So far, it would seem, the linkage has been used effectively only by the Latin American coaltal states to gain acceptance of the exclusive economic zone. Therefore, if and when it become-, clear that the formula for protecting American security interests in a comprehensive treaty is not going to produce a widely accepted agreement, the United States could shift to seeking the widest acceptance of a limited agreement. By the same reasoning, if a treaty acceptable from the standpoint of American security interests but unacceptable in other respects were widely accepted, the United States might agree to sign but submit reservations to the unacceptable parts. But reservations of this scope, as opposed to the wording of a few otherwise acceptable articles, would invite similar, reservations by other states and thereby defeat the compromises and trade-offs essential to any treaty worth signing. On the other hand, the United States may find that there is no prospect of gaining acceptance of the provisions of a limited treaty without making unacceptable concessions on the management of seabed resources. Or it may decide that any treaty, limited or comprehensive, that embodies the SNT's provisions with respect to the economic zone would set the stage for the virtual conversion of resource-related coastal state rights in the economic zone to the statusofpropertyrightsinsovereign territory. Since the provisioris for the economic zone may be contrary to U.S. interests in commercial shipping,scientific research, or fishing, such unacceptability is possible. The unacceptahility of the economic zone provisions would confront the United States with two options: II) sign a widely accepted treaty with reservations to the

65 7 3 ec(Inomic. zone provisionsOr 12) resolve to get along withno treaty at all. Regardless of American wishes,the latter option might be the more likely if the LOS bargaining situationhas inextricably linked the extension of coastalstate rights in the economiczone to the acceptance by coastalstates of theterritorial provisions. and straits In any case, even if Americansecurity interests were satisfied by ii widely iwcepted limited or comprehensive treaty, there isno assurance that the few key straits stateswould sign it. These states are not likely to be induced to modify theirpositions by any number of signatories toa treaty which they wouldoppose for special national reasons. With the fewkey straits states, then, theUnited States would simply haveto reach !he most favorable informal working arrangements possible.Experience with Spain and Indonesia thus far shows thatthis may be a feasible task. If faced with the choice ofa widely accepted treaty that failsto satisfy U.S. security interestsin the economiczone or no treaty at all, the I lnited States mightdecide to defer signinga treaty, partly out of confidence that essentialsecurity needs can be met by limited bilateral aml multilateral agreements, by mails vivendi, andthe slower development ofcustomary law and partly out of hopethat a better treaty can be achievedlater. According to thisstrategy, the United States wouldignore or defy unilateralcoastal state restrictions in the economiczone and wait for the proper balance between maritime and coastalinterests in that zone to develop through internationalregulationsintheIntergovernmental Maritime Consultative Organization (IMCO) and otherfunctional organizations And through theinterplay of unilateral legislation, policy statements, andactions among states. Meanwhile, look for opportunities it would to sign limited agreements withas many states as possible on straits andpassage through territorial waters, while coordinating itsunilateral statements andlegislation on these matters with likernindedstates. As a long-term option,this strategyassumes that the basic bargaining power of the UnitedStates and other major maritime states will improve as the developingstates and especially the coastal arid straits statesamong them learn that they need the cimperation id the maritimepowers that ha e the technology to develop oceanresources and the armed might to backit up more than these powers need thecooperation of the developingstates. This option is based on the calculation that the oil andresource rich developing states havea different set of vital interests than other developing the states and that therefore the formercannot indefinitely command theallegiance of ihe ;atter. Similarly,this

66 option assumes that some developing states, such as the oil producing countries with shipping interests or the countries without coasts or coastal shelves, will align themselves on selected issuer of rights and jurisdiction with the United States rather than in accordance with a North-South orientation. The validity of the strategy of deferring a treaty, therefore, depends significantly upon the general political and psychological environment of relations among the maritime powers and developingstates, and upon how American actions can affectthis fuivironment. Perhaps the most prudent estimate of these im- ponderables would he based on the assumption that at this delicate slaw! of North-South relations at least some limited agreements that accommodate the interests of maritime and coastal statesare needed in order to preserve a favorable environment for rnodus vivendc for the development of customary law, and for simplenon- agreemen t on a stlt of other issues where such mutual accommodation is not feasible. In this view, rather than place an all or nothing bet on a comprehensive, widely accepted treaty, or defera limited ieu.venient on navigation, transit, or overflight until more advantageous terms are availahle, the United States should proceed in a piecemeal fashion to secure reasonably satisfactory international agreements as soon as possible.It should do this, in part, to counteract the political effects of relying on unilateral actions and the sometimes disruptive development of customary law with respect to an array of other ocean issues which may not be subject to sal isfactory international agreements.'" One of the important achievements of the LOS conferences over the past decade or so has been to establish a widespread habit and expectation of bargaining and negotiating national differences on mat ters of common and interlocking interests which, in an earlier period of history. might have led to chronic conflict and anarchy. To maintain this mode of conflict resolution in the next decade and after,itwill not be sufficient to rely on the perpetuation of INCLOS. even if a comprehensive treaty were achieved. In the absence of a widely accepte(l comprehensive treaty, the peaceful resolution of differences will depend all the more on limited internal lona! ,ureements, precisely because there will be many issues that are not subject to any agreement.

NOTES

.1 !ItH 111111111',1111)11S I/I011. 1,11V Of 'illtif'd (1.()S1 for U.S. N1.1 :h.iphr 4 1,11 , 11 Idrh, zi.f1pruil i,, Ito furs1 sl,'1.1%4)`f.intidry 1975,

67 With 41f.f.ri.t,i11 if tihit- Kissinger's( arid nth,. phrased interview with Business IS'eik in %%fit( h. white releyt inp.p the use of armed force against ()1'F.0 yonntries to bring dow n the pr p ptiii. hi, omnspilmoosly. refrained from relecting the use of forcein ease got "some ai lila' stimigulation of the industrialized and Secretary of 1/efen.se So Ill.-anger hollowed foo stating that military action in the Middle Eastto prey Pro in a:Notation would be feasible. Subsequent assurances thdt theconditions wider yv liph the use ill have might have to be yoittemplati'd were "absolutely hy pother]. oil- and quite unlikely to xist did not offset the public impression that,at the least. drastio. oinol overt on tions. such ds an embargo. could provoke II.S.ot:med ill 11?Il At .uttptt .:too.'\p (tellI d the !Witt Conyent.on. submarines passing through internaranial s"rolits -are required to nay iga te on thesurface, and to show their flag." But the ot 'oil I '.S Intel pretation of Innocent passage (in line with the International Court ot loste'seport m the 1949 Corfu (:hannel cast! that "States in time of peace hasp righ" lo send itunu warships through straits used for intirniitinnal navigation between tpn pou t s of the lugh seas "Nit hoot the prey ions authorization ofa coastal State pros Hunt thou passage is Innocenti. does not concede that advance notice of pass.0.0. through to r tutorial waters is required. Advance notice of transit through straits. thr IS holds. wwild ruin the risk of leading to coastal state control of tiansit In pr i i. Inus PS CF, till. ideritly provides advance notice of siirriceshipsImonotsubmaroneslisuelit,pi.rhaps. where secretbilateral arrangement,, o helm ago evil). In De( omplierl'ro7.the Indonesian go% eminent declared that"all waters slur rmitillitog. bell.% elm. and looking the Islands to the State of lni,ippisiui,.. constitute natoiral pal ts 'ot inland ar national vo, oiters under the absolute jurisdiction of theState olo Ind(onesjoi . . Th.! 12 nudes miles pit territorial waters (ire measured frorn the line Po", I," puumnollorv point of the islands of the Indonesian state." Embassy of tto,poort IWashington. Noveniliw -Decernher 1957, looloari19181. %.ii8, nu. S P ;flveronient pit firially Illmflit's thatit has any agreement with any annul, to pras ide ails arn e notice of the pas!,age of warships through internationid strolls Test moon% ppp Api P. I.171, before the Subcommittee (in aational ( it-gator/atom's lod os ,.oent, I mist, Committee on Fort ign Affairs, 92n(I Cong., p Ste' o'., oafllared tirter,of !,,e Lhopartment of Defense, snbstantomed the risk bv Itr..( T:gypt's (hulled of passage to a commercid' vessel in the straits leading to the ( ;tilt of Ailabd before the lune 1987 Isrtielo on the grounds Ihoo the! arvio !mould to Israel peas not innocent. (Egyji '. however, basedits ( orionitoon on the (aosotioni that thine ',A been a stoite of war since 1948.) Carter !ha' Oita e iv ere other esamples of states clooming that worships do not have the tight oll !noun ent passavy.

In tilos( oatioins where int, I 'lilted has its toss it bases (or regular access to I imp has'', the I tout Slates hots interpreted overflight rights to be implicit 'd po : mission too as., the ha..es. Ii fl 1'1. n base righto. net-mission for oyerlight us singe's...l olopendiiluplusui.itu. clearanco; reciuved by filing one-tune transit requie,a.. " he of ',tense 011.1111,'S throe hinr itay!- in adv,ince of the flights). In 1.11,1i 1101'n cledrania., go around, infrequer,ey, Ils iPliuiu P 11.,11.11111. itpt,!1 hp 1',till' distrilott ion ofmourican bases luis iolo.o.oted serial], re..., t be East crisis of Nov ember 197:), h.iwo.% et krahloil theI !nu 14.11 '1toites overflight', therelu ). making it non ess,o, p tu P. oc. up ine "-Orono of (11)1',111,1r. 4 j),II !I,:Lurk. !II,. 111,11,Vf.11111,4ti (of luitifi-70 ill the Eighteen Noition Disarma- ment ( " '..7\ DC). 1..11,1111,41 the the (onitni,tro, on Disarm- nom' I o. who! II led III I t.iitViiiin. Phil,: uutlppri puf (hp! , p pt .tip i pippin., miff I Wier AelfIsti I )f!':1I't Mil on the thl ,',!11 Honor gold 111 44;10),M; ,reof Du iron Brown s pt on, goal:,I room !hese oinol other I ilocon eons, 'alch as the pr iceedings of the Seabed ( 'mono' ice. in es aniiiiinc the Isii slat us of passislisteno g des ices on

o oontilionit 111 the 1:10:5!fil u Is'11rWtpuirl. 'Woodrow 7 68 tor Scholars. (..1cean Series 301. lune 1971. )pp. 22-35. Seeri.Captain I.E. Inn. -De tense Needs m Accommodations Among Ocean NI. Alexander. eid. LIM (ifthe St(1international Rules and !h, Sou I hAngstun: Cniversity of Rhode Island. 19091. p. 33: John A. Kndo.o, t Role in the Ocean and its Relatton to the Law of the Sea," in Lett is NI .Alexander. ed.. The Law .4 the Sea. A New Geneva Omference (Kingston: 1 'int ei sift ol Rhode Island. 1972). (Pu an inter this from the fact that the original U.S. position on the prospective ins.t Ttp.it v implicitly protected the legal right of the United States to empla, h den n es on the continental shelf beyond the 200 meter depth. See also hi' Million: Role in the Ocean.- p. 79. Article :i of the U.S. draft Seabed Treaty pr.o. ides that the ,irva beyond tins depth "shall be open to use by all States, tt. ithunt li,iUllU,tipii. except as otherwase pros ided in thisConvention."Theonly ex, iplion tu the exploration ,ind exploitation of certain natural resources. rho. lte.itt.'.S. representabves. in et studied reference to military uses of the seabed. painted mit that it expressly protected the rights of states to conduct dolt we, ,Ither than exploration and exploitation of certain natural resources in the area 10 fbi 110 I. titliltV ii :NSW ati Otivtrrrvnt to a nuclear attack would seein to be negligible tts 1..1c:1ln:tem ta Ii:, I S second-strike capability by protecting SSBINIs is insigintn JiltI, , ampared with the other components of this capability. ASW would piat a 'nat.,' ..,de as a part of the 1I.S. strategic warfighting capability, particularly in (aw, .tine, s. But the utility of protecting convoys in any reasonably ameonahle war tt. ith the I ISSR Is highly questionable. Moreover, the efficacy of ASt,t, SSNs is probably. declining. For a balanced and skeptical analysis of the in general war. tief' L,nmence W. Martin, The Sea in Modern t-dr,d/.:1 hist:tuft' hir Strategic Studies. 1967), chap. 2. The Inhott ing straits could he included in the category of major economic significance 4hase 111,0111141 be adversely affected by local restrictions,depending on polite al pita:in:stances. are nahrized: Florida, Dover, Skagerrak, Mozambique, !foram:. Halt el Mandeb ( now that the Suez Canal is open). Malacca, and liasportis-Danlannelles Indonesian and Malaysian actions inde ate the kind ot restrnd ions that could be imposed, even though they were oinne,datedtoAmerican nat alpassage. Malaysia, concerned about the ii disasna fhat riedd follow ail accident to supertankers in the hazardous banned, it the; sti alt. claimed a territorial sea of twelve miles in 1909. Indonesia, tt. iii IIii Itn- had pro( imed its archipelago doctrine of sovereignty encompassing ficmio islands. 1,,Ined Malays:a in 1970 in a treaty dividing the Strait down the naddb Whcn theart ler IISS Entcrpria. and accompanying ships passed through the strait tatc in the Bay of Bengal during the Bangladesh crisis of 1972, Indane,cin spokesman reaffirmed the right of the littoral states to control such fed las ,an if. itthe. tight with the American action by stating tha( the I ot the Sot enth Fleet had given advance not ice. Captain Edward F. Oliver,

, 1 I e aits.- 1 Naval Institute Prof nedings (lune 1973), pp. 27-33. 1.,;:tonWrits 11. -Tbe Sea,indJapan's StrategicInterests,1975-1985," tifedaldi -fled sset tic in I.:Hs Hopkins University. 1975, pp. 16-23 \larch pr3. p. Al. Iran and (bnan later denied the report.

1 alitse.m. wit announf ed that was preparing a bill that would extend antip.al,wan 1,, 50 !ma's from shore or the limit of the continental shelf. See 1.1; marlin, "The Ride 01 Force Sea,- Perspectives on Ocean ee f s .it Conte:price on Conflict and Order in Ocean Relations, Ocean He. l'he loplxins l'iliversity. October 1074. pp. 34 ff. See -.cora:nail HHrt. Ctimlnillo. II by 1ohn Norton Moore, July 22, 1974. ,h,pt.,,H,.,!;aulateral legislation and customary law. see H. Gary Knight, I hit..r.Vr.rvot ;yrs un HlT0/1

69 CHAPTER 4.

COMMERCIAL NAVIGATION

Introduction

Constraints on U.S. policy options with regard to commercial navigation may be foundat two levelsinternational and domestic. The international legal regime applicableto navigation is undergGing significant changes in the UN Conferenceon the Law of the Sea. Although navigationper se is not on the agenda of the Conference, other resource issues whichare before the Conference have both adirect and indirecteffect on shipping. Since preparations for the Conference have been underway, U.S. policy on navigation related issues has changed in a number of respects. Official U.S. policy may be contrasted with theprovisions of the single negotiating text that emerged from the1975 session of the Law of the Sea Conference. Whilea management approach to shipping suggests criteriathat should guide U.S. policy, a consideration of alternative outcomes of the Conferencedefines the constraints on U.S. policy options.

The Present Legal Regime and Pressures for Co..mge Commercial navigation has traditionally operated undertwo legal principles. The firsiprinciple is freedom ofnavigation, that is, the high seas are open to all for thepurposes of navigation. The second and concomitant principle is flag state jurisdiction,namely each state exercises effective jurisdiction and controlover vessels flying its flag. The 1958 Geneva Convention on the High Seas transposed the classical doctrine of freedom of theseas into international treaty law. Article 2 of the convention lists four freedoms of thesea, the first being freedom of navigation. The convention specifies thatno state may validly purport to subject any part of the highseas to its sovereignty. The freedom of the high seas must be exercised with reasonable regard for the interests of other states and in accordance with the conditions laid down by the convention andother rules of international law. In the exercise of flag state jurisdiction,a state must exhibit the genuine link of control of its vessels, and fix conditions under which a ship may acquire its nationality andfly its flag. 76 71 The traditional legal notions of freedom of the seas and flag state jurisdiction that have applied to navigation are increasingly under pressure from a number of sources. The first source includes the proliferation of coastal state claims to jurisdiction. A number of states have extended claims to expanded territorial seas and contiguous zones or resource zones of up to 200 miles. New uses of the means made possible by rapidly evolving technology constitute a second source of pressure. These uses will, as in areas under coastal state jurisdiction, enjoy legal rights at leaSt equal to those of navigation. A third limit on freedom of navigation on the high seas is the growing assertion of an international interest in the manner in which flag states administer their .vessels. Restrictions are manifested in the form of conventions such as those promulgated hy the Intergovernmental Maritime Consultative Organization HM( O) to deal with vessel-source pollution or safety. These pressures on the international law of the sea are most clearly visible in the deliberations of the Third Law of the Sea Conference. Indeed, the Conference has tended to focus so intensely un the acquisition of resource rights in the oceans that navigation per se has been relatively neglected. Resource concerns have made three jurisdictional areas particularly problematic for navigation: the coastal state economic zone, straits used for international navigation, and archipelagic waters. The assertion of property rights to particular resources in 200-thile zones distin;.;uishes the ecOrloril if: or resource zone from the traditional legal concept of the contiguous zone. The navigation or other activities of certain types of %, essels are of necessity restricted or precluded by these property rights. The problem, then, in UNCLOS IIIis whether resource jorisdict ion will be distinguished from navigational freedoms. Will navigational rights be coequal with coastal state resource rights in the zone or be subordinated to them? How will the legal concept of the resource zone be rationalized? t ion through international straits has become a difficult legal issue in the context of general agreement to establish a uniform territorial sea of 12 miles. Under a global territorial sea of 12 miles, over 100 straits used for international navigation would be overlapped by territorial waters. Maritime states have argued in favor of freedoin of transit or unimpeded pasi:age through, over and under such straits. Straits states on the other hand have insisted that the more restrictive regime of innocent passage apply in such straits. At issue, from a legal perspective, is whether future nay igat ion through these strait: is to he viewed as a modification of t he freedom of navigation (as supported by maritime states) or as a privilege granted by coastal states (as supported by coastal states),

72 7 9 Can a definition or list of international straits be agreed?And can the concept of unimpeded transit be rationalizedto balance the interests of navigating and straits states? The problem of archipelagic waters combines,in a sense, the navigationaldilemmasofbothcoastalzones andstraits. Archipelagic state claims to establish archipelagicwaters within straight baselines linking outermost islands and.to establisha 200- mile economic zone beyond raise the issue of primacy ofresource over navigational rights. The new concept of archipelagic waters is being applied to many areas which have heretofore beenmajor shipping lanes. Once again the question arises: howbest to balance the interests of littoral and transiting states?Can the concept o.f archipelagic transit be refined to meet this need?

Domestic Shipping Interests

Except for a brief period during World WarI, the United States has not played a major international rolein the building or operating of ships since the middle of the 19thcentury. The causes of this relative declineare numerous, ranging from comparatively high labor c:osts to the high value of the dollaron world exchange markets. American shipyards have not been competitivein the world market place. In 1970 it cost twiceas much to construct a vessel in U.S. shipyards as in foreign yards. The resulthas been that the average age of the U.S. fleet, includingprivately and government-owned vessels,was 22 years in 1972, making it the oldest in the world.' Nor has the U.S. fleet faredwell in terms of shipping operations. While U.S. trade andcommerce have grown, a declining portion of it is carried in U.S. bottoms. Despitecargo preference provisions, U.S. flag vesselscarry only 5.5 percent of the tonnage and 20 percent of the value of goods in U.S.ocean borne foreign trade.

A number of il.forts have been made, with varying degreesof success, to reverse the trend in the U.S. merchant marine. These include the Merchant Marine Act of 1936 and theMerchant Ship Sales Act of 1946. The most recent legislation, the MerchantMarine Act of 1970, represented an attempt to correct the deficienciesof the 1936 legislation and to stimulate the construction of around300 vessels during a ten year period. Theseacts provide various benefits and iicentives including federal loanguarantees, construction and operating differential subsidies, anda tax-deferred construction fund. As indicated by these and otherpieces of legislation, various segments of the U.S. shippingindustry are politically active in the governmer.t and particularly theCongress.

73 SO A recent example of the political impact of this industry was the Energy Transportdtion Security Act of 1974 that would have required 20-3o percent of petroleum and gas imports to be carried On U.S. built, U.S. flag vessels. Despite the adverse consequences for the price of petroleum products in this country, both houses of Congress passed the bill but were unable to override an Executive veto. While elements of the U.S. shipping industry have vigorously pursued legislation and various means to subsidize or otherwise improve their situation, the industry has been relatively inactive in determining U.S. policy in the law of the sea negotiations. Among the eight subcommittees of the Advisory Committee to the U.S. Law of the Sed Delegation, that on Maritime Industries has always been among the smallest and least vocal, with only four members in 1974 and six in 1975. It may be the case that the industry interests are adequately protected from any UNCLOS III outcome by liner conference arrangements. In addition, a number of groups both within and outside the governtrwnt have interests similar to those of the shipping industry and have pursued them actively in the formulation of U.S. kiw of the sea policy. They include the petroleum industry, the Department of Defense, the Coast Guard, the Maritime Administration of the Department of Commerce, and the Department of State. The petroleum industry is concerned to ensure the unimpeded shipment of petroleum supplies around the world. Althmigh its policy with regard to navigation is somewhat influenced by its concerns in other areas, such as access to offshore oil,=the petroleum industry generally represents a policy that would In! pursued by the shipping industry if It were to become activ e. The basic premise of the petroleum industry policy on marine tr,insportation is that unrestricted commercial navigation is in the interests of all countries, since all share an interest in reducing th cost of shipping their exports and imports. Restric- tions lin navigation through principal international straits or in the territorial seas dnd economic zones of coastal states would extend shipping routes and lead to waste of fuel and higher freight rates. The industry therefore supports the right of innocent passage in the t territorial sea, high seas rights in the 200-mile resource :tome dnd beyond, anti unimpeded passage through straits used for intern ,f,onal .cm industry distinguishes hetween the right to set wel the re.4111 .0 enforce standards applying to navigation, and calls rm. 1.nt on internatiomil standards covering the design and construction .ofesselsand equipment, navigationalsafety, Si 74 pollution prevention, pollution liability, and damagecompensa- tion. States would adopt domestic legislation applying these standards to vessels flying their flag or navigating within their territorial seas or entering their ports. Further, the petroleum industry rommends that the. Law of the Sea Conference confirm the Intergovernmental Maritime Consultative Organization (IMCO) as the agency responsible for formulating international standards for vessel navigation. The industry notes that the conventions adopted by IMCO to date contain desirable international standards and need to be ratified bymore states to bring them into force. Enforcement of internationally agreed standards for cffinmercial vessels should, in the industry view, be shared by flag,port,and coastalstates.Enforcement of international standards on vessel design, construction and equipment would be the responsibility of the flag state supplemented by limitedport stffie authority. The coastal and straits states would have the responsibility to enforce internationally agreed navigationstan- dards in the territorial sea. Beyond the territorialsea, the coastal state may undertake emergency action where a maritime casualty threatens major pollution damage to its coastline. Internationally -agreed operational discharge standards would be enforced beyond the territorial sea by flag and port states, except wherea coastal state's coastline or economic interests are threatened byan operational discharge. Thk rather complex anddetailed policywith regardto commercial navigatMn is designed to preventunnecessary stop- ping arid boarding of vessels by coastal states. In the case of port state enforcement, it further provides that vessels be promptly released after providing evidence of financial responsibility. And finally it calls for private parties as well as states to haveaccess to the dispute set tlenwnt rriachinery created by a law of thesea convention. While the petroleum industry policy might not be acceptable to all segments of the shipping industry, it would certainly meet the needs of many groups within the industry,1 As such, it hascome to form the hasis of official U.S. policy on commercial navigation in the law of the sea negotiations. The background and evolution of goveroment policy in this area merit closer examination.

U.S. Policy and the Law of the Sea Conference

Despit e! the fact that navigation is one of the oldest uses of the oceans. it does nffi appear on the agenda of the. UN Law of the Sea 8 75 Con b.! e o ellectstheresource preoccupation ofthe li..Qot tat o In tat t,all countries. both coastal and landlocked, .1111 e uininuil interestin ocean navigation for purposes of commer( litranspor t. This tact is often overlooked, however, in discussions of coastal state jurisdictional rights or in flights of FliPturif, ,dimit the hegemony of maritime powers. (Iradualk hmy cr.1 number of developing states have become wore es phi it about their concern to avoid undue restrictions on igation. This has led, in the case of pollution questions, to a bai king ,m ay from the vie%N that the coastal state should have the gluttuset 1;r. \ e.isel construction standards inits btN nore stringent t.an international stariliards ti i-rtance ofthe ned forinternational late :E. r..iv also account tor a growing measure of support onimpeded transit th,migh intern:16(mill straits. As countries h is Vomvue!a. Nigeria, and those ot the Middle East begin sh,ppui.:; petreieum intheir owr, rankers, they will come in- (reasing!,.. qq,uso' coastal iot international tor that matter) restro tions t inkers. Clearly. the issue of rammcrcial navigation toes nct Icnd itseli: to a fundamental North-South p',Iitical division the 1.,11.% of the Sea C00terence.4 Although ma% 'groom per seisnot on tile agenda or being scussed directly at the Conference, a number of i:tsues that have a direct bearing (in navigation ore. They include the breadth of the territ;)rmi sea, transit through international straits, regalation of -source pollution and juristictional rights and responsibilities .! ,.:00-inde resource zones and archipelagic waters. U.S. ludic% ith regard to each of these issues has developed at different points m time and in sonw cases has been elaborated, altered or refined ov,1 time.

Evolution of U.S. Policy. Since 1q70, the most obvious trend in II,S. policy has been away from ,. stress on maritime considerations toward an emphasis on coastal rights and interests. This shift has been occasioned by both :lomesto, omit I international pressures. In 1970 and 1971, the United States Lod bed% v emphasis on the right of "freetransit" through and u% erinternationalstraitsthat would be overlapped by territorial,.easittwelve miles were internationally accepted. Beyond 1 territuriiil sea.U.S.concerns with maritime mobility led it to propose a system of preferentialfishing rights and

d 0 mtmcnial shelf zonethat would be highly internationalin charai ter A negative rsponse, both domestic and international, led to refirl,,inents of this position as early its 1972. That yearthe

76 8 3 !Him;tree transit as a simple and limited ignr p oin one end iit str,ot to joher. Tin rnited States rtr tr,,nsit as a hit..01 seas light ,Illd hegan to elaborate ei I ttl state rights in internationalstraits. These included ,tate right to er, iolations ot its own s tit 'Immo ted to. stops in transita. well as a right to niandatio MI1.111.011,11,111%; atutted

L.S. OW increased ',hand eiinternational standards that ),vould bepromulgated by t1,, Intel Mai wineConsultativeOrganization , At( lioth ith regard to straits transit and vesselsoul ce ii thu S. proposed significantiww responsibilities for ) ) would (le% elop mandatorysafety standards and i,arationSt limos There would he strict liabi1 i! for fond lanes enforceable by thestraits state., The argued strongly that I\1(..0was the appropriate in temational hod%to handle these issues given its technical 0,,pei rise Ntoi f.r.it had the potential to develop1 significant plitIti I tIt h, marine en% ironment. dieI 'toted States a complete set of draft les on pron.( tool ot the marineen% ironment which developed and elaborated this position. 'Meseportions of the marine pollution art e.les ith pollution as it relates to navigationare similar to the position .it the petroleum industrydescribed above, witha few i tiltillit terences. lake the industry position, the officialpolicy distingui.h,s een the right to set and the right to enforce standarik ..oressei source pollution. Standardsetting power.. oul,fhi sted iii INICO w'..hich would alsogive its approval to requests f,r higher standards for specialareas. The official pusithal (!itfers from that of the petroleumindustry in thatit pim. hies th, r;ght for the flag state to imposehigher standards on e;sels !It :au its flag ,md for theport state on vessels entering its pork l'resumAlv the direct interest ofthese states in promoting rii' igat ion would preclude the formulation ofarbitrary or unduly restro ..tandards. In the case of enforcement, theofficial U.S. poln relies ilea\ dv on coastal state andport state enforcement rights..I.he govei.nment doesgo further than the industry in specifying occasions wherec ,astal state action would be ap- propria le and the types of arrangements it might makewith other states tu Larr. out an enforcement action. The coastalstate would he authorized to take directaction, including arrest, to prevent, mitigate or i'liniiriitii pollution danger resulting from maritime casualties offits«hist or from a violation of ;.nternational standards Secondly, the United Statesproposes a system whereby , oa,ta Istatesould take enforcement actions against vessels of if tlttit uthorized by the compulsory dispute settlement mechanism on the basis of its finding that the flag state had persistentlyfaded totake enforcementaction.For ordinary ,Holat tunsofinternational standards, the coastal state could reipure m14111,01111 trom the offending vessel and could require enfori vim ..taction eitherby the vessel's flag state or the next port id Lad ln mostrespei.ts.thel'.S.ifficial position on straits and p,Illution has remained unthangedsince 1973.The only development in that policyin 1474was the addition of ii provision, to the Canadian (;overnment, that would allow the coastal state to recommend to the international organization (presumably lNICOthat special standards and regulations apply to sensitive areas on thebasisof depth,navigational or environmental mdations. The most significant development inU.S. policy affecting nay igat,unin 1974 was official acceptanceof the concept of a200- mile econon,:.:zone. The U.S. draft articles stipulate that nothing in the "c hap te:' shall affect the rights of freedom of navigation and erflight, and other rights recognized by the general principles of international law." The United States specified elsewhere that the enjoyment of these freedoms is on an equal footing with the enjoyment by the coastal state of its rights in the zone. The rights of thecoastal state,as spelled out in the U.S. draft articles, are to be limited to resource related activities and exclude activities such as scientific research or pollution. In fact, however, itis easy to foresee how ;:oastal state resource exploitation rights and activities pose limit., on navigational freedoms. For example, in the case of coastal state exclusive rights to authorize and regulate artificial islands and installations for economic purposes, the coastal state may establish safety zones and "take appropriate measures to ensure the safety both of the installations and of navigation." This and other ; .,ivisions of the U.S. text underscore the fact that where multiple and notentially conflicting activities take place with.a she same limited area, there must be some means to accommodate or reconoile them. The dilemma then in determining policies on issues affecting navigationstraits transit, pollution and economic zonesis that d reconciling the interests of littoral states with the interests of other states which use the coastal areas for non-resource purposes. A related difficulty will be to determine what are and are not resource-re.ated uses of the coastal area. Clearly, the potential exists for stretching the concept of resource-relaied activities to B 78 cov nay IL:iition insotio as it might result in ilegradation of the ni a me environment, tor mstam:e. In the course ot the live years during w hich the Ilniteil States has been artirmat mg policy in the l4;14; of the Sea Conference, it has tom. ed from a position in which navigational and high seas freedoms would i;onstitute a priority to a position in which resource Fights of the coastal state would enjoy equal status with other uses of the coastal areas. At the other end of the spectrum from theS. policy of parity is the position of the "territorialists." These couctries, including Rnii.il, Eniador, :ind Peru,propose territorial seas of 200 miles m which the coastal state enjoys primal.%in all respectsresource and non-resource related uses. The single negotiating text iSNT) that rt!.:tilt.A from the Geneva sessomit the Law of the Sed COnference has attempted to adopt a middle position between these two eods of the spectrum of opinionw it h greater Success in some provisiens than in others.

The Single Negotiating Text In a number of respects, the SNT that emerged at the 1975 Gcneva St'SSLIM of I NCLOS III coincides with the official U.S. position on straits, prevention of marine pollution and a 200-mile exclusive economic zone. The greatest convergence is found on the issues of straits and pollution. The provisions of the SNT on the economic zone, however, show some notable divergencies from the U.S. position. While not directly restrictive of commercial navigation, coastal state rights in the economic zone, as depicted in the SNT, couldeasilybe stretchedintofar-reachitit and restrictive territorial rights. This possibility derives from the inherent difficult y.of determining what is and what is not an economicor resource related activ ity. Article 45 of the Committee II text differs most widely from the U.S. position in this respect. It provides for various gradations of coastal state rights in the exclusive economic zone, presumably in descending order of sovereignty. The coastal state would have "sovereign rights" for the purpose of exploiting resources. It would have "exclusive rights and jurisdiction" with regard to the establishment ofall, not just resource-related, artificialislands and installations. With regard to scientific research and a variety of unspecified economic activities in the zone (e.g., generation of ent-rgy from currents and vv.nds) the coastal state would enjoy "exclpsive jurisdiction." And finally the Committee U text provides ci lasta I state "jurisdiction" with regard to the marine environment. Clearly these five distinctions in coastal state rights could be blurred in practice and IA time, resulting in far-reaching coastal b kr) 79 state rights in the zone. (if course, the Committer II provisionson itlitifitreseal( h and marine pollution may be replaced hy the more t.p. ti aide ar tides trom Committee III s.vhict, has responsibility tor these issues. Such1 de\ elopment, havevtt,an not resolve the fundamental dilto.ulty of determining resource-related Loastal state rights end and the rights of otherstates to use the area begin Perhaps the clearest example of this dilemmais the link betw ern riLlits to manage mg resmirces and the protection of the marine ern, Ironment The Canadian (;oyernment has made thecase ;mist stroredt that in order to protect its rights to fisheries in its ei onorim.tones,itmust also control navigation which may threaten t h,,se resources with pollutiun. Similarlya coastal state wishin,4 1,, tAert its contr er the zone could argue that all marine sliiie reseai ch has ei.onomic implicatinns ultimately and should th, retort,besubiecttoitscnntrol, The possibility of these i.,intingem les argues strongly in favor of greater drafting precision in the spelling out of rights to apply in the economic zone. The Commit tee II text on straits used for internationalnavigation is more sin.,.essful in terms of precise drafting. It sets forth rather spetifn.alit the ih tinit om of I straitas well as the rights of both straits states and transiting parties. In most respects, the articles Loincide with the I.S. position on straits transit as it evolved after That ;s, transit pi.,ssage is narrowly definedto give the straits state the re.dit to apply ci number of laws and regulations to vessels in transit. In defining where transit passage may or may not apply thereis one notahle difference between the SNT and theU.S. posit ionA..ticle 4 4 of the SNT provides for the rigt,at ofninocent pissiQe intr,iiis lying between one area of the high seas and the ex( lusie,.onormi. znind territorial sea of a foreign state while theI ".S.rillsnit. unimpeded transitin these s.raits.In this provision. ,ts elsewhere in the Conunittee II portion of the SNT, the treatment ,,t the economic zene is ambiguous. It is not uniformly depicted as 'I hiull sods areai trend which( Auldprove ul,imately prihtltnittitit onunercial navigation. The Committee III text dealing with vessel-source pr,:iutionis more favorable to nal. igational interests than the Committee II text. Sim:e it w IL he I lealt with in greater detail in the following chapier, it satires iii omment here that the text coincides with the I.S. pusitoon and presuniAbly. thereflire,IT.S. interestson vessel-source pollution in all critical respects. In summation. the SNT coincides in part with U.S. policyrelating ti curnmerii,d navwation. The greatest restrictionson maritime transport enamating from the text li in its articleson the economic zone. s the basis for future negotiation, the text articleson the

80 zorw will need to be carefully revised. Given its maritime interests, the ti.S. may want to press strongly for such revisions since the terms of tbe present Committee II tev could lead to a virtual carving up of the oceans into national pieces of real estate.

Options for the U.S. A Management Approach to Shipping The use of ocean space for commercial transport may be viewed as an ocean resource. For centuries, the availability of ocean space has far exceeded the demands made on it by commercial navigation and other ocean uses. In a sense the ocean has represented a free good and the process of allocation has been on a first-come first- served basis. The legal doctrine of freedom of the seaswas a reflection oftr- is economic situation of excess supply. More recently, as cecain areas have become relatively congested, theuse of the oceans for navigation has been allocated bymeans of generally accepted shipping rules and regulations such as those dealing with signals, ship lighting, rights of way and channel markings. These have been simple and relativelycostless derogat ions from the freedom of the seas doctrine. In the II-year period from 1951 to 1972, world shipping virtually doubled in tonnage, with proportionate increases since that time. Size as wet; as number of ships are increasing. New superships are Liquefied Natural Gas Carriers (LNG), Very Large Crude Carriers VI.(:C). Express Containerships, Chemical Tanker and LASH ILighter Aboard Ship, for carrying barges). While ships have become larger and more sophisticated, vessel traffic systems have not. This poses particular problems in high density traffic areas such as the English Channel/North Sea, Gibraltar/Mediterranean, Persian Gulf, Malacca Strait and entrances to the major ports of the world. Based on past rates of growth, congestion will become more acute in these straits as well as in other heavily trafficked coastal areas. While world shipping is expanding, new technologies are rapidly increasing man's uses of the oceans for a variety purposesparticularly in the alreadN, heavily traveled coast areas. Thus the problem of crowded shipping lanes will compounded by the needto accommodate new and asy,:t unforeseen uses of the seas. At present there are a number of areas where congestion poses a problem for commercial navigation. They include harbors, the above mentioned straits and closed seas, and coastal areas off the United States and japan. Outside of harbor areas, the heavily

81 8(6 transited Dm. er Straits have the highest ir:Adence of collision. These straik averaged passage by 350 .n, ships a day in 1971 and witnesied 174 maior collisions and 34 strandings from 1958to 1972. During this period, the only forms of traffic control in thearea were voluntary traffic separation scherneF and a straits sur- veillanteservice which broadcast navigation warnings. With regard to most of ocean space, however, there continues to bean ecess supply, and the premise of the freedom of the high seas is still operable. In these areas, IMCO regulations regarding traffic ,.eviration. pilotage schemes and pollution abatement have been benellinol uu1 relatively costless, In coastalareas, however, where congestion poses or will pose co:it ly hazards to shipping, there isa needtixtleviea new means to allocate ocean space among alternati e users. Where regulation is required,user rights must be established and vesteii either in the coastal state, in regional arrange:Lents. or in the international community.

As the valui: of 11(:Van space has risen for navigation and non nay wation uses, coastal states have extended jurisdictional claims and lieen willing to expend resources to enforce those Some argue that this tonstitutes a uscrul means to allocate ocean amomt conflicting uses. In effect, this situation creates property rh 0.!to offshor- areas on behalf of the coastal state. In these aroas. thy coastal state would assume the authority to llt lights among z:onflicting uses and to regulateor restrict varMus uses, including navigation, as appropriate. Indeed the coastal state might charge tolls to cover theexpenses incurred in managin:4 navigation in congested straits or coastal areas.

In th w of cthers, granting the coastal state such authority might lead o non-economic results. That is, the coastal state might engage in pure harassment of foreign users as the opportunity and motivation icise. Opponents of vesting navigation rights in whole or in pa,-! in the coastal state, therefore, prefer to grant such rights thrnrnational community. According to this view, nonnaviga- s should be excluded from narrow corridors in internat ionai ;:traits, or navigation routes and navigation rights in these areas shoLid be vested in the international community by means of a law of the Areement. In 200-mile resource zones, navigation by foreign stau.s would not be subject to regulations of the coastal state. Instead. a law of the sea treaty should establish general principles and a respohsible international organization suchas IMCO would subsequently develop specific international safety and env ironment al regulations.

8t. Alternative Treaty Outcomes The preferred out.owe !or the Pnited States in the area of eummerchil,navigation .voulde tor ItNCLOS III to produce what is deemed hy the I 'tilted States to be in acceptable international treaty. That could comprise a treaty :,-.!nerally along the lines of the single negot:ating text with reac e.to straits and Cormlit tee III provisions in marine pollutmn liut with substantial changes in the content ot the economic min.!. Provisions for the economic zone, while protecting coastal state resource interests, should therefore not he susceptible to heing translated into restrictions on vessel coth;truction or navigation 1;1 the area. In the e% ent that IINCI.t produces one or more treaties which embody an aci.ept vd regime for commercial navigation, the t hiited States will wen, to take implementing action at a number of le% tiat:cnal ()old include ratification of the treaty and passage lit implenwni int; do:.,stic legislation. Where appropriate, rt'LtlUncliNt Li on pollution or navigational safety might be cum:lin:eel to supplement the agreement. t the other Vxtrpnw, 'tie least desirable outcom from the U.S. point ,t vie,A wieHl result from UNCLOS III passage of a treaty whichs% ctildini;losunnecessary restrictions on commercial my. igation in al: -through straits and in territorial seas and pLonl,r11,, slich an unlikely event, the United States would s% al., to suHnit reservations to all unacceptable portions of the treaty Or tin treaty as a whole. Since virtually all countries have a Qeheral !est in maintaining a smooth flow of international conunerce. ati eatv thoroughly restrictive of navigation is im- prchaHe \tore likely is a treaty which would be unacceptable insome but ill respects['hat is. it might provide an acceptable regime for nayie.:.'..ion in the areas of straits and pollution but not with regard to the economic zone. In sucha situation, the LInited States (Andel submit reservations to those portions of the treaty it findsurhiccept able while accepting the remainder. Where a provi.:on or set of provisions were unacceptable, the United States ,:ight want toissue a clear statement of its policy and its inderstanding of the international lawon the issue. Such an cliproach could be pursued in conjunction with other like-minded stat.Murenver. bilateral agreements would play a very important role in a few cases in which the United States had particular leverage ,n issues of economic zone and straits states rights. With reg:,rd to marine pollution and vessel safety standards the United States would want to continue to support the activities of IMCO

83 and regi,wal approaches Another :mddle-range scenario would result from a situation in h nb treat% were to emanate from UNCLOS III. The result in terms ot nai word at t ions would resemble neither the pre-UNCLOS III orld nor the situation that would result from a general international treaty. States would issiw a variety of claims anda remium ,vould be placed on state practice as the means of developing international law of the oceans. In such a context, the I !tilted States might wish to pursue a variety of means to advance itsmait One policies.Itsunilateralpronouncementson navigational and coastal state rights and responsibilities could be coordinated with those of other nations with similar policies. lodeet I, where possible, multilateral agreements might be concluded. obligiw4 parties to take a number of steps with regard to their own flag vessels. These might deal with general issues as well as I.hnical specifications. navigation standards, labor conditions and sono. They could he clearly spelled out and could provide for appropriatc enforcement iictions. With regard to straits and archipelago traiisit. the I Inited States might want to supplement the multilateral approach with special bilateral arrangements in particular straits. Similai iv the United States could work actively to promote regional policiesthat create uniform regimes on pollution ,md other ;:oastal zone issues. And finally the United States might want to urge that IMCO pick up work on thoseareas under its iurisdict ion to begin where a law of the sea treaty failed to miltiT1,1111.1.

Whatever the outcome of the Law of the Sea Conference, the work of INICO will he crititalin developing a future regime for commercial navigation. Itn the fitplace, it is important to see to it that the conventions thi IMCO has already negotiatedcome into effect. As of the present..two major conventions which set higher stanilards1 performanct fur flag states have yet to he ratified by the requisite number of slates: the 1967 Conventionon Intervention on the High Seas in Cases of Oil Pollution Casualties and the 1973 Convention on the Prevention of Pollution from Ships. The future program of INIC( ) efforts is also critical. Even if UNCLOS III were to product !a treaty that dealt acceptably with the various legal issues affecting navigation, it will not directly address the issue of how to improve navigation. Such work would be best undertaken by IMCO. Of critical importance is the estahlishment of international vessel traffic systems fur those areas in which shipping congestion poses dangers, with such factors as past and projected t r a f f i c I h tv weather. topography and accident statistics taken into account. The first stages of such a system would include traffic 9 84 separation scheloes and a mandatory listening watchon a specified VI IF frequency. Depending upon need, this might be developedinto a system that would provide for complete movement reports and shore conti ill capabilities. The development of such navigation systems as well as improved .afety standards and strict liability requirements are areas in which the United States should press for turther progress in IMCO. At the same time that work on navig6'ion in congestedareas is progressiw2 within IMCO, the United States might also seek bilioorii !understandings with straits states to facilitatea smooth flow of navigation through international straits. Even if thereis a law of the sea treaty calling for unimpeded transit through international straits, ther e is no guarantee that it will be accepted bylittoralstates.Indeed,theirpositionininternational negotiations to date suggests that they will not accepta treaty providing tor unimoeded transit through straits. It will therefore be necessary tor the Uniti.1 States to develop appropriate bilateral umlerstandings with these governments to promote regular traffic flow s through uts until the neede(I international vessel traffic systems can be ai.;reed upon. Ciyen the global intereit in maintaining internationalcommerce, it is doubtful that I NCIA)S III would set out deliberately to drafta treaty creating unnecessary restrictions on navigation. Sucha product may result. however, due to the fact that the Conference is focusing on resource issues rather thanon navigation per se. Whatever the Conference outcome, the United States willwant to continue to pursue a policy calling for shared coastal state and international responsibility for management of traffic in congested areas based on internationally agreed rules.

Notes , Th t.r.1 I Hr.!. !..rildtpro s hiitild nut be taken as negletting the fact that some sel toi s !he I' S tommeri tal ileet are re'atively new. technically proficient and ptotitaidi. In taithe ietrilitiorn industryruncernwith commercial navigation is relatively tits ent Wild,. the National Petroleum I mincil began issuing reports on law of the sea as eariv as I 969. the fiitused linolo;ess toof fshore resources, Not until 1973 did the t,ikt1 psltill.ot marine transportation. h a [1,1111 \ 111Ws not meet the navigational interestof the U.S. navy lishoseessels urn he right tif suveleign immunity to any event. Su h idi% :stun tan, uf tourse. arise where developing countriesare seeking special ,ok ant,o.tiis In the I 'N tiunicrente on Trunk. and Development luN(TAD), for moan, e !hey hu pr..sct..1 for!mireftturable shipping rafts and incentives to grnw !keit. ri Iiiiits 94' 85 CHAPTER 5.

MARINE ENVIRONMENT

Introduction

The deterioration of the ocean environment and the formulation of corrective measures pose complicated questions. On theone hand, the environment is but one of several fundamentalissues ,ncerning the use of ocean space currently being negotiated at the .4 Law of the Sea Conference (UNCLOS). As such, it influences and is influenced by the resolution of these otherissues. On the other hand, ocean environment deterioration is part ofa broader, new class of problems known as transnational pollution. The physicalinterdependenciesofecologicalsystems transcend political frontiers, and pollutants generated withinone country damage the environment of other nationsas well as such international commorrproperty resourcesas the oceans.1 Controls for transnational pollution are in their infancy, and workon ocean environment measures must break new ground. From another perspective, ocean environment isa question of the efficient use of oceans for multiplepurposes including waste disposal. However, by virtue of its international character, andthe fact that agreements are negotiatedamong sovereign states, analysis of the allocative efficiency of usingocean environmental services must be tempered by international equity,or distribution, considerations. In this seifse the environment isnot unlike the fisheries and mineral exploitation disputesthe commingling of efficiency anddistributionalobjectives within international negotiations. Moreover, this perspective highlights the interactive roles of legal, political, and economic analysis. To awardor limit rights to ocean space for waste disposal involvesan economically scarce resource, assimilative capacity. When these entitlements and restrictions are accomplished by negotiation andnot by fiat, as they must be for internationalresources, they stand at the nexus of economics, politics, and the law. Finally, the multiplicity of pollutants, the dixerseways in which they enter the marine environment, the fragmentation of control instruments by pollutant, spatial jurisdiction, comprehensiveness, and the great uncertainties surrounding the environmentaland economic consequences of ocean pollution, make analysiscom- plicated and difficult. 9 3 87 I H''NI. itOP' (:1)111Vrt'Ill dll occasion tor mar In,' ironment lliIt,, low ever, onh. part 'a !he story. While I `NCLOS may modify the present env i 'I iii 1,dicti mai regime, important issues Of environmental esoui management 1,\ This will he so whatever the results oithe Conferete.e. I S. policy makers should .ilso Lons:der these issues iiit edit resource management that exist i: ACHY* rht. id this ,.:iapter isIIIitiil\/( marine pollution and pollii!lon polo..ind to present an evaluation of itol it iriti policy optionsI lit etore, criteria for evaluation are important and should . !earlys ate& Fortunately, general prMciples derived from environmer al resource management are also useful in the ocean ciaitextIlie most important principle observes that natural u.onmei ts are ectownlicallv valuable resources which provide a .1e11e1 icial ser ices to mankind. Econom;i: and social IR thi.ti pi.o.e stress« s WI natural environments. These stresses an hi .uo.deratedin .1 number of way: including pollution abatement. Fhemodifications.however,generallyinvolve e«miono I ists calculated environmental resource consIders boto the damages done to the environment and the it1111). Illt; env ironmentally damaging activity. Rational polo.% attempts to maximize the benefits over costs frorn using :ronnier tat resources {including minmonetary benefits), net of the real t,s-;ociated with environmental controls. Thus the ion criterion forptilicvis an extension of cost-benefit

A second criterion for evaluating m:ean environmental policy, and derR e,l from general principles of environmentalresource inanav,cmect.isthatthe control instruments themselves are ecommin al.%efficient. Thatis,the instruments (e.g., design standards !r oil t,inktrsh should achieve their objectives (e.g., rvd,it:vd least economic cost, subject to the institutional, political and legal constraints within which they operate. For this reason analysis of the constraints cannot lw separatedfrom evaluationof marine environmental policy. Although policy formatian is often a disorderly and inefficient proLess, these general principles provide benchmarks or criteria for evaluating A more difficult conceptual problem involves specifying whose welfare is be maximized. In theory, an environmental policy which ma\ unizes global welfare acco:'ding to the criteria set forth .itiove need not. moximize H.S. welfare, and conversely. Inter- nat otto1 trade neontiations often illustrate this divergencetiftween

988 n.111,m,11ititihi1tl welfare. As a practiced matter,we have not haind am,learcut cases in Ouch n ()Leon eovironmental policy was of iiiriitl trom a global standpoint, but in serious conflict with L.S. interests.t til reason appears to lie that there isa limited harmful N.idinterests among states in preserving the marine en ironment. As the le\ el 14 controls is still quite primitive, the rititeir w Inch states have mutual int( ,.ests has not been exhausted. Policies which contribute to global welfarecan he shown to ciultribote toours. This is not to say that policies in place or contemplated are efficient or rationally calculated; rather the same evaluation criteria can he employed from both the national and glolial perspective. .11,ese ideasare discussed more fully in subseqUent sections. This chapter first presentssonle background information on the sticct.s,,ndtypestitmarine pollution.Next,a conceptual framework tor understanding ocean environmentdeterioration and tHintrol measures is presented. Following this, specificissues that hav Ultfl in the ocean environment policy area are eYamined. Finally, the concluding section considersprogress within UNCLOS Ill, outlines optionsind presents conclusions.

Sources and Types of Ocean Pollution: Control Measures2

T,ibles 1-4 present selected dataon the sources and types of ocean pollution and control measures. TableI indicates, in the vertical stub. types of pollutants, and ir the horizontalstub, methods of introductit,n to the marine envirohment. Theclassifications are not always mutually exclusive. For example,dredge spoils often contain heavy metals. Also, the placement ofocean dumping within land-based saurces is arbitrary. The Tablealso notes some of the maior enyli on mental control measures that dire;:tlyor indirectly affectthe qualityofthe marine environment.Itshould be emphasized that the existence ofaparticular envq'onmental (writrul measure should not be interpretedas meaning that pollutant source is under effective control.Tables 2 and 3 extend the tlescription. Table 2 gives recentestimates of petroleum reachingtheinarine environment. The data do notinclude 4tmospheric blow tiff of hydrocarbons that reach theoceant..3 Table 3 presents data on t 1.s.ocean dumping hy dumped material, and by location for1968 and 1973. The (luta do not include dumping incHen ta; to normal ship operations,nor marine out falls. Both oil pollution and dumping :tre subjta:t to internationalconven-

89 timns ini.lujing the Prevention of Pollution from Ships Convention 1197:i ; md the Con% ention on the Prevention of Nlarine Pollution by Dumping Wastes and Other Nlat ter (1972). The former is not yet in ton.e. Table 4, based (in the work of the Hint Group of Experts on the S(aentitic Aspects (3f Marine Pollution (GESAMP), contains an alternati rtaxonomy oftypes and sources, and attempts a qualitativ, issessment of the importance of each.

Key Identification for Table 5 1

PrItuttlii0f1 of Pollution 1fOr,SlitIji 119731 , ,,,rrrfa!or,iflorrnr;otrIals ileSign dint operating standards dng ,1 .anas tor tannersProvisions are designed to reduce both .tiidectai petroleum hscharges horn tankers and other Ocer111 7,-.1..orsvrOtior,`r.tsr'.r," been ratified and is not in force i.aiat coar L:roverrteer4iirthe Prevention of Pollution from Ships 0913, .1n-nr r"..s air lair lv drtrierl estatiiished elf IiierdiSt.hdfljr! IirrlifS Irl 0(A-dr, I.If ',Wirt If ,o..or,110.0 trOsfallt:tr, -erhat ,,,,,,onor) for he Prevention of Pollution from Ships 09131 jr,Or.r.Jed's OriftrOl.earl transport of containerized

s.terrat ctrar nuentiolltirrthe Presentee. of Pollution torn Ships i1973) Arf e.`, 'nnSet.l otion,11 annexes deal with veirssel's sewage anti

' Pre,enhirc of Marine Pollution by Dumping of Wastes and .,ror, rorriniorr:sthe Ocean Dumping Convention The ;cid, klist Ot sut/SIdfiCeS for which dumping is pro tii.! 1tmir 1isr 01011 to iNiteriat authorities in controlling .1!.1,rer wastesT rie C,)nverition has been ratified by the U 5 but

P...;. -I 01 0.1..1:,),IS including the 1972 North Sea Ocean itn4 me 1974 Convention on the Protection of the Marine crie-ere my. Balt, Sea Aied The North Seri COrleerrboll is similar to the ean onvertiont'leBaltic Sea Convention covers land based sirci. es ri sessei SOW; I., ocean poilLAion

1 ,sMrrr r`e Profr,t.cri Research arid Sanctuaries Act of 1972. and subsequent egiaator's established by the EPAThis legislation designates 0 a as granting agency for ocean dumping, but the An. iri5:` cgateers retains permit granting authority over its own actisity i trediiing iper:ri .O.,1,, rb, miring Nui.iear uni!dt.n.ins Tests Irr the Atmosphere, in Outer Space and ,reter tierParham Test Ban Treatym Seined anil entered into force. 1. tre :it the Emplacement of Nuclear Weapons and t..ther .".eat cns Macs Destructon r,in the Sea Bed and the Ocean Floor and in trat '...1 siiii Thereof Sea Bd Teatsr Signed 1971 and entered into force 1972 Treteral y'r arer P.illution Control Act Amendments of 1972 tinOuiilm. t.ui fs sulphur Aionifteparticulate to rnatter, carbon monoxide tr, tr irecigen oxide% photo chemical rundentsl are controlled in the tiv the Ciean Air A; I Amendments of 1970 and the 1974 Energy SuPply I,: En ,inarnentirl C!iordelatiOr ArT1

9 E -cam till Pesticide Control Act of 1972 While not directly iiir eia,ne erivironment,hontrolit may indirectly reduce larel,Lbesed

Itypt,r11 Or. Aratifors 'rut, nuclear power rianrs is regulated by \in !ear Reg,,I.vory Commission The NRC also has the responsitehty for 'Tie riper it,. r, Of ail !Orville vessels with nuclear reactors .. ,PA -;ets JP tartls 'or I.discharges through the Federal Water 11rr, Contrie Ant -re 1: the interior Department rs responsible for leasing territory on 'he 'Shed and f,-e monitoring the safety of drillingThe environ er eiteistaireniett :irtivisirrnS of the National Environmental Pretty Act 9

90 Table 51

Major Ocean Environmental Control Measures by Type ofPollution and Method of Introduction

Isee also Key Identification)

.tiFEIRMOI.NniNOMMINMIIMIAMMEM=1011.1111 Method of Marine.based Sources Land.based Sources Introduction

OffShore Type of Atmos. Ocean Transport Petroleum Dirty River Marine Pollutant Ocean pheric Routine Accidental DredgingExploitation Other Discharge Outtalls Dumping Blowoff Other

Petroleurn 1 la 12 7 2, 3, 4 1=4.11....=rwroomosmswomm...P....11.*...1 Industrial waste

Igenerall lb, lc lb, lc 2, 3, A 11ftilmwolowarlimmimummoym1....110., Pesticide, insecticide

residuals (halogenated

hydrocarbonsl lb, lc lb, lc 2, 3, 4 9

Sewage and garbage ld Id 7 2, 3, 4

Heavy metals 2, 3, 4

Dredge spoils 2, 3, 4 2, 3, 4 Isalimmisi.M.Mill...... M.NmislariliFFM.1ImmonmdlIMM.4.11/10101Mal

Radioactive wastes 10 5, 6 1, 3, 4 5 10

Thermal discharges 11

Others 8

97 Table 5-2

Estimated Sources and Quantities of Oil Pollution of theOceans*

of total oil Tanker Operations Metric Tons to the oceans

LOT cleaning/ballastinga 84,499 2.4 Non LOT cleaning i ballasting 455,708 13.2 Product tankers using shore

reception facilities...... 19,492 0.6 Product tankers not using shore

reception facilities.. . . 63,832 1.9 Ore Bulk , Oil Carriers cleaning and ballasting 119,543 3.4 Additional cleaning and disposal prior to drydocking 91.1395 2.7 Tanker bilges 9,573 0.3 Tanker barges.. 12,787 0.4 Terminal operations 31,933 0.9 889,262 25.8 01hr-if------Ship Operations Bunkers ...... 9,055 0.3 Bilges, cleaning. ballasting, etc. . 292,481 8.5 301,536 8.8 Vessel Accidents

Tankers 104,268 3.0 Tank barges 19,803 0.6 All other vessels 48,972 1.4 173,043 5.0 Offshore Activities

Offshore drilling 118,126 3.4 118,126 3.4

Non-Marine Operations and Accidents Refinery-Petrochemical plant waste oils 195,402 5.7 Industrial Machinery waste oil.. 718,468 20.8 Automotive Waste oil ... 1,034,588 29.9 Pipelines 25,574 0.7

Overall Total 3,455,999 100.0

Source: D. Charter Er J. Porricelli, "Quantitative Estimatesof Petroleum to the Oceans," paper presented at the May 1973 Workshop on Inputs, Fates and Effects ofPetroleum in the Marine Environment, National Academy of Sciences, NationalResearch Council, and quoted in C. Pearson, op. cit. The data presented above donot include natural seepage, which is estimated at .6 million tons. aLOT Load op Top, a technique in which oilywater ballast is collected in slop tanks with the heavier seawater settling to the bottom and being released. Freshoil is then loaded directly on the oil residue in the slop tank.

92 9 6 Table 5-3 U.S. Ocean Dumping: Types, Locations, Amounts 1968 and 1973*

Atlantic Gulf of Mexico Pacific Total Waste Type 1968 1973 1968 1973 1968 1973 1968 1973 (thousands of tons)

Dredge Spoils . . 15808 NA 15300 NA 7320 NA 38428 NA Sewage Sludge.. 4477 5429 0 0 0 0 4477 5429

Industrial Wastes . 3013 3997 696 1408 981 0 46905405 Construction and Demolition Debris 574 1161 0 0 0 0 574 1161 Solid Wastes 0 0 0 0 26 .2 26 .2 Explosives ..... 15 0 0 0 0 0 15 0 Total 23887 15966 8327 48210

'Sources: Council on Environmental Quality, 5th Annual Report, 1974, Table 11,pg. 150 and Council on Environmental Quality, Ocean Dumping: A National Policy(Washington: CPO, 19701, and quoted in C. Pearson, op. cit. Note: These data do not include wastes piped to sea (marine outfalls). Notealso that 86,758 containers of radioactive wastes were dumped between 1946 and 1970, but ata greatly reduced rate in recent years. The practice has now been apparently discontinued.

9 9

93 Table 5-4 Principal Sources of Marina Pollution

Manufacture and Use of Agriculture, Industrial Domestic Forestry, Products Wastes Public Health Disposal via Disposal via Disposal via Direct Dudek* Direct OutfallsRunoff from Category of Pollutant and Rivers and Rivers Land

Domestic sewage including food-processing wastes + + + Pesticides Organochlodne compounds + + + +

Organophosphorus compounds + 14 ) + Carbamate compounds + 1 +1 Herbicides + 1 +1 + Mercurial compounds + + + Miscellaneous metal-containing compounds + 1 +1 1 +1 PCBs + + ( +1 Inorganic wastes Acids and alkalis + Sulfite + Titanium dioxide wastes 0 Mercury + + + Lead + 1 + ) Copper + + 1 + I 1 + I Lnc + Chromium + Cadmium + + Arsenic + 1 +1 Radioactive materials + +

Oil and oil dispersants + + 1 +1 Petrochemicals and organic chemicals Aromatic solvents + + Aliphatic solvents + Plastic intermediates and byproducts + + Phenols + + 1 +1 ( + ) Amines + Polycyclic aromatics + + Organic wastes including pulp and paper wastes + + + + +

Military wastes T Heat + +

Detergents + + + ( +1 Solid objects + + Dredging spoil and inert wastes +

Key to symbols: ? uncertain + +important + significant 0 potentially harmful (+1slight dependent on extent of weapons testing

94 100 Operational Accidental Discharge Release from Exploitation Deliberate from Ships Ships and of Seabed Transfer Dumping in Course Submarine Mineral Military from the from Ships of Duties Pipelines Resources Activities Atmosphere

(+ )

( + ) 0 + + ^ 0 0

0 ( + )

I +1 0 0 + + ( +) + +

+1 ( ( +) 0 0 0 ? ( + 0 ( +) 0 + +

+ ( + I + ( + I+ 0 ( +) ( + 0 0

+ + + + ( +1

Source: Joint group of Experts on the Scientific Aspects of Marine Pollution, Report of the Third Session (Rome: FAO, February 1971), UN Doc GESAMP III/19. pp. 19-22. Also cited in Robert A. Shinn. The International Politics of Marine Pollution Control (New York: Praeger, 1974).

95 101 These tables obiously do not provide a comprehensive account of the types and sources of marine pollution. Nor do they contain information on damages from pollution. They do, however, illustrate certain featutes of ocean pollution which are important for the analysis of policy. First, the tables indicate that land-based sources of marine pollution are of major significance. This is especially clear from Table 2, which shows that land-based sources account for 57 percent of oil pollution, excluding atmospheric blowoff. As discussed below, control of land-based sources has been effectively excluded from UNCLOS negotiations. A second feature is that pollution arises from very deliberate activities (e.g., ocean dumping) but also from the incidental result of other activities (e.g., offshore oil production). Environmental controls should comprehend both types. Finally, Table 1 shows that there is a wide variety of marine environment controlsin place or contemplated. These range from "global" conventions concerned with a particular type or source of pollution to the incidental result of domestic (U.S.) environmental control legislation. The variety of control instruments suggestsfhat UNCLOS activities, while important, .are too narrow a focus for analysis. One feature not illvstrated in the tables is the environmental sensitivity of coastal waters. Not only are they critical for most commercial fishing, but their location near land means that they receive the dominant share of pollutants. In this connection, closed or semi-enclosed seas with long flushing times will often require more stringent protection measures.

Principles

The roots of ocean environment deterioration are not difficult to perceive. Economic activityraw material exploitation, transport, processing, consumptionincidentally produces residuals,or wastes. Wastes disposed in the natural environment in excess of its capacity to assimilate and render them harmless, degrade the quality of the environment. The stock of environmental capital is impaired, and beneficial use of the resources is reduced. The oceans are the scene of economic activity (mainly minerals extraction, fisheries, marine transport), and receive wastes accordingly. Also, the incorrect belief that ocean assimilative capacity is inexhaustible has been instrumental in excessive use for waste disposal. The law of grayiY!, and the absence of restrictive domestic and internationa: .aw, have also encouraged ocean waste disposal from land-based activity. Malicious motives need not be imputed to polluters. Environ- 1 0 2 96 mental resources have traditionally been common property, with free access for waste disposal and otherpurposes. The dilemma of common property resources is thatit generally is not in any individual user's interest to exercise restraint andconserve the productivity of that resource. Indeed, unilateral restraint is costly for the individual, for the benefits of his actionare not appropriated by him, but are dispersed among other users. Unless compensated, there is a clear disincentive for an individual (or state) to act responsibly by limiting his waste loads. The oceans are particularly vulnerable to environmental insult. First, the legal traditions of freedom of the high seas and right to capture fish stocks have persisted beyond the time when they were economically and environmentally rational. Until quite recently, the supply of ocean service (fisheries, marine transport,waste assimilation) exceeded demand, and ocean resources lacked scarcity, or economic value. In such circumstances freeaccess through a common property resource regimewas economically efficient.Appropriation by states, and restricted accessto resources in excess supply, would have been inefficient, and global welfare would have been reduced.5 Excess supplies for mostocean resource services have, however, been eroded and they have become economically scdrce. Restrictions on accessare necessary to curb resource abuse. This is particularly true of waste disposal, which impairs other ocean resource services. It is not, however, true for marine transport on the high seas. Except for local congestion in heavily travelled waters, excess supply of marine transport services per se persists. As explained in the previous chapter, the rationale for free commercial navigation subject to environmental regulations remains strong. However, with respect to ocean-waste disposal, the need for restrictions collides with the remnants of outdated traditions and legal regimes. Second, the process of restricting ocean waste disposal rights, now underway, does not affect all users of the oceans equally. The incidence of abatement costs, and the incidence of abatement benefits (damages avoided), is unevenly distributed internationally. Effective environmental controls necessarily have welfare distributional results, and there will be welfare transfers from some groups and countries to others. Within the United States and within many other countries, the distributional result of national environmental controls is usually not constraining,as mechanisms for compensatory redistribution of welfareare in place if needed, andthecentral government can compel compliance when necessary. Neither of these factors operates in ocean space, where international mechanisms for welfare transferare rudimentary and 103 97 residual ownership rights are absent. Accordingly, ocean environment controls proceed through negotiations among sovereign governments, who are constrained to producing agreements such that each member is made no worse off. This constraint can result in inadequate protection of the marine environment. Third, and closely related, the international community has been unsuccessful in negotiating agreements that reach back to control the very important land-based sources of ocean pollution. The exercise of national sovereignty has effectively eliminated international control over land-based pollution from most serious discussions.6 The shield of national sovereignty therefore is another serious barrier to marine environment protection. Fourth, on a quite different and more subjective note,the damages to the ocean environment themselves are of a character to encourage continuedinsult.While some pollution incidents produce damages that are visible, direct, and critical, some pollution damage is subtle, indirect, synergistic, cumulative and long term. Scientific evidence is often inconclusive. Economic damages are speculative. The ocean environment question lacks a sense of urgency and drama. By itself, this means little. However, ocean environmental policy is being negotiated in competition with other issues of high and immediate priority. Lacking a w9II-defined domestic constituency, and a sense of drama and urgency, it is slighted in negotiations. Even when it is considered, unwarranted attention is given to acute pollution incidents such as the Torrey Canyon oil spill, and not enough given to low level, chronic abuses. The irony is, of course, that the oceans are ultimate sinks from which wastes are not flushed. Cumulative buildups of pollutants may proceed for many years before recognized as critical, at which time corrective action may be too late. The ability of governments to perceive longer term environmental damages in timely fashion is not altogether encouraging; the prospects for so dcing in international conferences such as UNCLOS are sobering.

Ocean Environmental Controls The case for restricting deliberate and incidental ocean waste disposal rests, then, on the need to conserve the productivity of ocean resources, and the failure of traditional legal regimes to accomplish this. Having established the need for controls, two broad questions of jurisdiction and management arisewhere is the authority for establishing controls to bvested, and what should be the purpose and design of the control instruments themselves?

98 10 1 For taxonomical purposes the following types of environmental control jurisdictions are established. Theyare useful later for sorting out issues.

Po nu t Source Control Au throity Examples Activities on land la unilateral coastal U.S. Federal Water and within tradi- state control Pollution Control tional territorial Amendments (1972) waters' lb global international Ocean Dumping conventions and Convention (1972) agreements lc regional conventions North Sea Ocean and agreements Dumping Convention (1972) 2Activities (vessel 21 coastal state proposed at UNCLOS and nonvet.sel) within control ilfl expanded economic zone (expected 200 miles) 2h international controls proposed at UNCLOS (IMCO or elsewhere) 2c coastal state control proposed at UNCLOS subject to minimum international standards 3Activities in what 3a international conven- Prevention of Pollu- remains of the high tions and agreements tion from Ships Con- seas (and seabeds) vention 3b authority vested in a proposed at UNCLOS Seabed Authority arrangement

It is with regard to jurisdiction questions and not management questions that UNCLOS is most directly concerned. Jurisdiction for environmental control can reside either fully with the coastal state, primarily with the coastal state subject to international minimum standards, or fully with an international authorityas is contemplated for the agency designed to exploit seabed nodules. Category 1 type pollution problems, in which the pollutionsource has been within national territory, have largely escaped UNCLOS attention beyond the declaration of general principles. ;The fact of national sovereignty has restricted environmental controlsover land-based sources, and activities within traditional territorial waters, to unilateral national policies and to such voluntary arrangements which states have agreed to among themselves. Category 2 type pollution occurring in an expanded economiczone of perhaps 200 miles has been an active issue within UNCLOS both with regard to jurisdiction and enforcement questions. Despite ecological objections to arbitrary divisions of oceanspace, there

99 105 has been considerable pressure to couple environmental and economic jurisdiction for coastal states up to 200 miles. The important exception, not yet guaranteed successful, is for separate treatment of vessel source pollution within the economic zone. Environmental controls over activities on and under the high seas (Category 3) are basically a question of yessPI source pollution controls, and a question of the nature and powers granted to any nodule exploitation agency ultimately established. With regard to the next broad question, concerning the purpose and design of ocean environment controls, general principles of environmental policy can be helpful. Specifically, all environmental policy confronts the three questions of how clean is clean enough, what instruments should be employed to achieve environmental quality (pollution abatement) goals, and who pays and who benefits. The choice of environmental quality goals can be satisfactorily answered on an abstract economic basis by selecting these quality levels (abatement levels) such that the incremental cost of the last unit of pollution abatement is equal to the incremental benefits, or environmental damages avoided. Benefits and costs referto economic magnitude, and include nonmonetary welfare gains and losses. To go beyond the level where marginal benefits and costs are equal would be as wasteful of real resources, and welfare, as to fallshort of the optimum level. Wither zero pollution nor unrestrictedwaste disposaliseconomicallyrational.8 Two corollaries, particularly relevant to the, international character of ocean pollution, flow from this proposition. First, environmental quality goals, or standards, should not be internationally.uniform for the following reason, Both cost and damage functions vary among regions and countries, and these differences must be respected if a rational or efficient waste disposal program is to emerge. Internationally established environmental controls are not precluded, but they must be sufficiently flexible to account for legitimate local differences in cost/benefit calculus. Second, the choice of abatement levels cannot be left to states acting in their narrow interests. As argued earlier, the essential dilemma of a common property resource in which international externalities are present is that individual users cannot be expected to conserve the resource adequately. The general principle for setting environmental quality goals is clear. In practice it is exceptionally difficult to estimate cost and particularly benefit (damage) functions. The reasons are well known, and include the problems of moving from estimates of pollution emissions to ambient quality levels, to biological and 10 100 ecological impacts. to economic evaluation. In particular, many environmental services do not pass through markets, and to value them poses considerable difficulties. Also, as mentioned earlier, the indirect. subtle and cumulative nature of ocean pollution argues for caution in setting quality objectives. In any event, abatement goals should be subject to review and revision as ri?w data become available. Additionally, uncertainty concerning cost and benefit functions suggests that the establishment of specific standards could be removed from highly political fora, be formulated by disinterested experts without particular interests to promote, but also be subject to scrutiny and comment by all interested parties before they are firmly established. Of course, regulation cannot proceed without some form of jurisdiction. The choice of instruments to secure environmental quality objectives Nvill depend in large part on the nature of the pollutant and source. Instruments can range from legal prohibition, to compensatory damage payments to victims,to effluent and emission standards, to fees and charges, to particular design and operating requirements. Instruments can be evalua ted according to how well they perform the following functions: minimize enforcement costs provide incentive for improvement in abatement technology respect cost differences among waste disposers (encouraging greater abatement for low alternative cost waste disposers) preclude uncontrolled shunting of wastes from one environmental medium/site to another maximize information flows concerning costs and benefits A full discussion of instruments would be tedious. We do, however, observe the following. In the ocean environment context, compensatory damage payments to victims is seldom feasible, as the costs of identifying victims, evaluating their damages, and relating these to speCific polluters will be extremely expensive and uncertain. One exception may be acute oil spills in coastal waters. Effluentand emissionfees,or charges, have considerable theoreticaladvantages. They willautomaticallydistinguish between high and low alternative cost polluters,10 will allowa choice of abatement technology to meet individual circumstances, provide a continuing incentive for tech1eical improvement, and provide a source of revenue to th,, taxing agency. However, enforcement costs may be prohibitively eN pensive. Design standards,such as the segregwo:i ballastmg provisions of the Prevention of Pollution from Ships Convention, may overlook least cost abatement technology Nevertheless, they can have a clear

101 10 7 enforcement cost advantageonce in place and certified, enforcement becomes trivial. Additionally, design standards can minimize the problem of inspection, always a touchy issue in international relations. Questions of the distributional consequences of environmental measureswho pays and who benefitsare more important internationally than domestically. Typically, ocean environmental controls are voluntarily negotiated among sovereign states, and recourse to an international authority pursuing global welfare is absent. Accordingly, agreements are constrained to those in which each party is made no worse off. Distributional considerations, then, cannot be neatly separated from allocative efficiency aspects. At the same time, the mechanisms for compensatory welfare transfera network of compensation or "bribes"are not well developed at the international level. As argued below, this can lead to suboptimal ocean environment policies.

Role of UNCLOS The Law of the Sea negotiations provide the vehicle for moving from one legal regime for the oceans to another. Obviously, the formulation of ocean environment policy is conditioned by the legal arrangements governing ocean space. Indeed, as argued earlier, the historic legal regime was in part responsible for the degradation of the ocean environment. If a new, comprehensive treaty emerges from UNCLOS negotiations it will have a dual impact on ocean environment policy; first,it will reinforce and extend general principles regarding the environmental rights and duties of states in using ocean resources. We can expect these general principles to embrace, to some degree, both land and marine based sources of pollution. Second, and more importantly, a comprehensive treaty will specify the spa tial and functional jurisdictioh of states for formulating and enforcing environmental controls. As such, it will provide the legal framework within which specific controls and standards are established. Withal, it is important to recognize that UNCLOS is only one part of the process of developing aod implementing marine environment policies. Whatever the result of UNCLOS, nations will still confront the critical management questions of abatement levels, choice of instruments, and distributional considerations. UNCLOS does not attempt even broad environmental protection measures. Accordingly, whatever the outcometreaty or no treaty, 200-mile coastal state environmental zones or not, recognition of dual standards for industrial and developing countries, etc.,important issues will remain. There will still be a need to negotiate specific 10 102 instruments. Decisions concerning unilateral, bilateral, iegional and global approaches will still be made. The problem of the transmutability of pollutantsshuntingwill continue. The lag between damages and theirperception, and the associated possibility of irreversible damages, remain. The adequacy of cost benefit analysis in situations of great uncertainty and potentially catastrophic damages (albeit with low probability) will not be resolved. While land-based pollution sources may be enjoined to respect the marine environment, compulsion will be absent. The ambivalent attitude of developing countries toward environmental quality, much in evidence at both Stockholm and UNCLOS, will persist. In short, itis important to interpret the environmental component of UNCLOS, and to present and argue policy options for this forum, but it would be incorrect to weight UNCLOS too heavily.

Issues

Choosing Abatement Levels Assuming that (a) abatement cost and benefit functions are known, but not identical among countries (b) countries attempt to maximize their own welfare and will not enter agreements in which they think they are made worse off and (c) compensatory transfers (sometimes called bribes or side payments) cannot be male among countries, then it can be shown rigorously that abatement levels selected in negotiations can be less than optimal, and protection of the marine environment may be inadequate,11 Moreover, it can be shown that the more cost and benefit functions differ among nations, the greater will be the distance between the actual and optimum abatement level.12 Thii assumptions underlying this proposition appear quite reasonable. Countries both value ocean environmental services differently, and have different intensities of use of ocean services. Hence, abatement benefit (damage avoidance) functions will differ. Also, countries differ both as to their current use of the oceans for waste disposal and the opportunity costs for alternative disposal. Hence abatement costs functions will differ, Moreover, the ,ui..irnption that states will not voluntarily enter agreements in which they are made worse off seems to be H minimum condition. Finally international compensfit ion mechanisms are rudimentary. Even if the set of cost and benefit functions is such that each party will be made better off by moving to optbnal abatement levels, the classic "free rider" problem will be present, and may interfei e with 109 103 the sekction of the optimal abatement level.13 The source of the dilemma is quite clear. All countries havean interest in preserving the marine environment, but this statement can he misleading. Our interests in beneficial uses of the oceans (including especially recreation, aesthetic enjoyment and other amenities) are not identical. Nor does each country contribute equally to pollution damages. Nor is the flow of damagesamong countries balanced. Optimal abatement policy can place abatement costs on countries in excess of the net benefits they receive from their own and other abatement programs.Icilnless compensated, they will not join the agreement. Suboptimal environmental quality levels will be chosen.ls INCLOS does nothing to solve this dilemma except, perhaps, if tlw Seethed Authority is granted environmental controlpower and takes a global perspective. On the contrary, the single negotiating text (SNT) coming out of Geneva explicitly relies on prospective agreements and conventions to be negotiated within IMCO, or on an ad hoc basis, to deal with a wide variety of pollution sources, including land-based sources. Realistically, in the absence of an international authority with powers to establish and enforce controls over a wide spectrum of marine pollution sources, we must rely on a variety of approaches to this problem. First, improved data on local damages from pollution may persuade some countries to undertake abatement programs in their own self-interest. Technical assistance, either bilaterally or through international organizations to developing countries will he helpful. Second, international agreements, either regional or global, will generally promote greater protection than would reliance on unilateral actions. That theymay be suboptimal, does not mean they are worthless. Third, it may be possible to cultivate a more global welfare perspective than IS implied above. There is adequate evidence that environmental concernsarouse more internationalist sentiment than, say, do trade interests. Fourth,theinternational compensation mechanisms can be improved. Disadvantaged countries can be compensated, and polluters "bribed" to alter their waste disposal practices. In the longer term, this method should be given serious consideration. Without doubt, industrial countries have captured most of the "rent" from assimilative capacity, and contributed disproportionately to degrading international common propertyresources. Aside from the supporting equity argument, industrial countries may well have to subvent sonic abatement costs in developing countries if they wish these countries to follow a less destructive path than we ourselves followed. Finally, the scope for unilateral

104 11 0 action should not be overlooked. Selecting rigorous environmental standards provides an example and pat tern.16 In some cases, for example controls on ships entering U.S. ports, unilaterally imposed standards can encourage more rigorous flag state standards. All of these approaches are examined in the final section on U.S. options.

Shunting Recognizing that material residuals from extraction, transport, processing, and consumption do not disappear, a waste disposal program involves four optionsreducing waste loads by product and process change, recycling waste material, waste treatment to render it less damaging to the environment, and redirecting waste flows toless costly environmental sites and mediums. The appropriate combination of these options is determined by their economic costsboth financial and social, to include environmental damage costs. Wastes are transferable, and can be shifted from one site or medium to another.17 Economic activity itself is spatially mobile over time. In the absence of a comprehensive waste disposal program, stringent environmental controls in one area may result in the mere shifting of wastes from one area to another. This creates two problems. First, and perhaps less important, controlling one type pollution source and leaving others uncontrolled may miss the least cost method of achieving environmental quality objectives. For example, if the goal is a quantitative limit on petroleum reaching the marine environment, and only marine-based sources are controlled, inexpensive abatement of land-based sources may be bypassed, and the total cost of achieving the desired objective will be higher than necessary. Second, rigid controls on one form of waste disposal may simply divert, or shunt, wastes to other sites and mediums with higher financial and environmental costs. For example, if prohibiting the ocean disposal of sewage sludge results in increased use of river outfalls, or uncontrolled burning, the environmental damages may be higher than with no action at all. Also, if on-board retention of oily wastes from tanker cleaning is mandated, but on-shore reception facilities for these wastes are inadequate, the wastes may be shifted to the more vulnerable coastal areas. Some attention has been given to this problem. The regional North Sea Ocean Dumping Convention stipulates that restricting dumping in that area should not divert these wastes to other ocean areas. U.S. dumping legislation provides that, in issuing or denying ocean dumping permits, the Environmental Protection Agency (EPA) must consider the impact of using land-based alternatives on

105 11 i the public interest, presumably including environmental interest.18 The Single Negotiating,Text which came ou t of the 1975 UNCLOS session provides that: In taking measures to prevent or control marine pollution, States shall guard against the effect of merely transferring, directly or indirectly, damages or hazards from one area to another, or from one type of pollution to another.

Despite this attention, shunting still appears a serious issue. As noted, international progress on controlling land-based sources of marine pollution has been slight, and rigid controls on ocean disposal may divertwaste flowsto environmentally more damaging pat terns. Internationally, comprehensive and integrated waste disposal programs are rare. Spatial diversionof waste flows through partialcontrol programs can also come about through relocation of economic, and especiallyindustrial,activity over time. Dual environmental standards, less restrictive for developing countries, becomes an issue. While it is true that some relocation of economic activity toward the South to conform with environmental assimilative capacity and different valuations placed on the environment may be desirable, rigorous ocean environmental controls imposed by industrial countries, as for example on vessel source pollution, which results in a competitive advantage for uncontrolled fleets of developing countries would be undesirable. This would simply divert pollution from one fleet to another, and would be unrelated to the environmental assimilative capacity of developing countiies. The mining of manganese nodules from the seabed floor presents another possible illustration of waste diversion. If land-based mining and processing operations, and particularly refining and smelting are strictly controlled, and ocean processing of manganese nodules enjoys few environmental constraints, there will be a financialincentive, on the margin,toshift from land-based processing to nodule exploitation. The inclusion of social costs (environmental damages) at one site but not at another, will distort relative production costs, shift economic activity, and decrease global social welfare. Alternatively, stringent controls over ocean refining of nodules combined with some shoreside "pollution havens" could shift nodule refining activity from the oceans to land, with possible higher environmental and financial costs. Again, the need is for a unified and integrated waste disposal program to comprehend land and ocean-based pollution. 112 106 Dual vs Uniform Standards Discussion of this issue has been confused. We note first that the issue of uniform international environment standards has been confused in ith the question of internationally formulated standards. They are quite distinct. Internationally formulated standards can be nonuniform. Second, the distinction should be made between effluent/emission standards, and ambient standards. One can have uniform effluent/emission standards and differing ambient standards, and conversely. Third, we re-emphasize that uniform international ambient or emission standards are generally uneconomic., and do not respect legitimate differences among countries as to alternative abatement costs, valuation of damages, etc.Inthis respectthe developing countries are correctin requesting due consideration for their capabilities and levels of income. Their argument is most powerful when (1) pollution damages are local, rather than regional or global; (2) one can be confident that the standards they select accurately reflect their real interests; and (3) they are not compelled, through pernicious competition among themselves, to compete as pollution havens. Unfortunately, these conditions do not obtain with regard to all forms of marine pollution.Inparticular,vessel source pollution, almost by definition, involves regional or global damages. There seems little justification for less strict standards applied to developing country fleets. Nor can one be fully sanguine about carte blanche approval of dual standards,More restrictive for industrial countries and less restrictive ior developing countries, for land-based sources. Some land-based pollutants will have regional or possibly global effects. Dual standards for land-based marine pollution are, of course, part of the larger question of shifting polluting activity to less developed regions and countries by imposing differential environmental control costs. The real dangers are that receiving countries may not perceive the full social costs of environmental degradation, or that they may be driven through competition for investments, jobs, etc., to compete for economic activity on the basis of low or zero environmental controls. Developing countries often feel that they should not be obligated to higher environmental standards than the developed countries enjoyed during their industrialization, unless it can be shown to be in their self interest, or they receive some form of compensation. Dual standards, then, are closely linked to the pollution diversion problem.

Coastal State Environmental Jurisdiction and Enforcement Powers The problem of coastal state environmental jurisdiction and 113 107 enforcement powers is twofold. First, Will a regime which grants broad authority to coastal states to establish environ'Meifial regulations and enforcement lead to greater or lesser protection of the marine environment? The question becomes more important if the breadth of the environmental zone is coterminous with the economic zone as proposed in the Single Negotiating Text rather than vith traditional territorial seas. An argument in favor of broad coastal state environmental zones is the need for coastal state.s t, have the authority and power to proteut their coastlines and near-shore resources. As coastal states stand to suffer disproportionate damages from pollution in coastal waters, it should be in their interest to establish rigorous environmmital controls, and they should therefore be granted the necessar, authority. The right to exploit resources within the economic zone shouldtherefore be accompanied by the righttoconserve environmental resources in the same area. The opposing arguments, however, have merit. States have had a rather dismal record of conserving their environmental patrimony. To yield large areas of ocean space to coastal states, without adequate international supervision or control, would extend seaward the area of national sovereignty, and seem needlessly reckless. The ambivalent attitude toward environmental protection held by many states, and their reluctance to cede sovereignty to international authorities was evident in the Stockholm Declaration of Principles: "States have, in accordance with the Charter of the United Nations and the principles of international law,the sovereign right to exploit their own resources pursuant to their own (mvironmental policies. and Ow responsibility to ensure that activities within their jurisdi1,1c or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction." (Emphasis added.) This ambivalence also pervades the UNCLOS negotiations. The second problem of coastal state environmental jurisdiction and enforcement powers centers on navigational rights. If coastal states are accorded full authority to establish environmental regulations on vessels operating within a broad environmental zone,there could be serious interference with international shipping activities. For example, if a coastal state designated part or all of its coastal waters as environmentally sensitive, it might ban or sharply limit' transport of, say toxic substances in these waters. Alternatively,itmight declare that certain types of vessels, supertankers or nuclear-powered vessels, are environmentally hazardous and therefore excluded from those waters. Coastal states which are astride major sea lanes could also impose design,

108 1 1 1 construction, and operating equipment requirements which, if not uniform among countries, could substantially increase ocean transport costs, as shippers attempted to comply with a patchwork of differing and perhaps conflicting standards. If coastal states receive enforcement powers without adequate safeguards, commercial shipping could be subject to unwarranted harassment and interference, ostensibly for environmental protection. One cannot necessarily rely on the self interest of coastal states as users of shipping servicesto keep transport costs low; coastal state authority could extend to ships in transit to other port states. The p;oblem, therefore, is to construct a coastal state environmental authority structure which will: (1) protect the legitimate interests of coastal states in guarding their coastlines against environmental hazards; (2) avoid a situation in which coastal states are free to plunder an expanded environmental zone; (3) maintain shipping costs at the lowest possible level consistent with adequate environmental controls; and(4) avoid harassment of commercial navigation.

Land-Based Sources To some degree, the four issues discussed abovethe dilemma of negotiatinQ optimal abatement levels, shunting, dual standards, and coast,ti tate jurisdictionare all present and are complicating factors inm trolling land-based sources of marine pollution. As noted, UNCLOS will not formulate specific controls for land-based sources, but leaves this task to agreements and conventions yet to be negotiated. Therefore, these agreements will confront the problem of selecting suboptimal abatement levels. Moreover, tighter controls over marine-based pollution sources (herecon- sidered to include ocean dumping) may divert waste flows to land disposal, or may through the reallocation of economic activity, divert waste loads to developing regions and countries. The shield of national sovereignty sharply limits environmental controlsover land-based smirces. 1.1NCLOS is not completely silent on land-based sources. If "successful," it will strengthen the evolving principle that states respect the environment of other states, and areas beyond their jurisdiction. This is a significant obligation, and extends the earlier principle that a state should not undertake activities which directly damage the environment of another state, as set forth in the Trail Smelthr Case.2" At the same time, it is unrealistic lo expect that this principle by itself will have much direct practical effect on controlling land-based sources of marine pollution. One reason is that often the most visible pollution damages accrue mainly to the

109 115 polluting state itself, and if it chooses not to act against its own polluters, the international community can do very little. A second reason is the difficulty in attributing a source to specific pollutants or to a deterioration in the marine environment. For example, a (disputed) claim is that the oxygen level of the Baltic Sea has been reduced by industrial effluents introduced through river discharges. Attributing responsibility to particular Baltic riparian states is extremely difficult. Or again, it is very difficult to identify the source of chlorinated hydrocarbons such as DDT and PCB in the marine environment. It appears naive to assume that the production and use of these chemicals, which is very much a part of domestic economic structure, will be seriously curtailed as a direct result of states responding to a general principle adopted in UNCLOS .

U.S. Policy Making Process The adequacy of international ocean environmental policies is determinedinpart by the effectiveness of domestic policy formulation. As is well known, there are conflicts among U.S. Government agencies concerning many UNCLOS ocean issues, and the environmentisno exception. With some effort one can characterize agency positions as follows. The Defense Department supports exemptionformilitaryvessels from international environmental standards (the sovereign immunity clause), and generally opposes coastal state environmental zones, as a restriction onfree navigation. The Interior Department wishes to facilitate oil .transport, while maintaining full U.S. control of offshore oil exploitation. Treasury and Commerce wish to minimize transport costs. The Coast Guard, of course, has pollution control enforcement responsibilities, as well as a general interest in commercill navigation. The Environmental Protection Agency and the Cr' on Environmental Quality have supported international standards ior pollution control, with port and coastal states allowed to set higher standards if they wish. The State Department, anxious for successful negotiations in UNCLOS, may

. be willing to compromise in the area of coastal state environmental jurisdiction. One can trace these conflicts through the evolution of U.S. environment policy in UNCLOS. Specifically, the United States has moved away from full flag/port state approach to vessel source pollution to some concessions for coastal state enforcement and rule-making rights, as discussed in the previous chapter. The problem of conflicting interests among agencies in formulating U.S. policy is not unlike the conflict of issues and interests within UNCLOS itself. As the environment becomes one 11 6 110 of several areas competing for attention and priority, there is the danger that environmental objectives are sacrificed in a negotiated compromise. The danger is greatest when the environment lacks a well-defined, cohesive, and politically strong constituency andan agency within Government to articulate the interests of this constituency. We do not attempt to evaluate systematically the success with which environmental interests have been represented within the National Security Council Interagency Task Force on Law of the Sea, or marine environment policy more generally. We do, however, observe the following. First, the United States played a major role in the successful negotiation of both the 1972 Ocean Dumping Convention and the 1973 Prevention of Pollution from Ships Convention. Obviously, internal coordination within the United States was adequate for these major environmentalmeasures. Second, coordination for UNCLOS may have lagged. The United States made no environmental policy statement until 1972, although it was made a UN Seabed Committee agenda item in 1970. Also, CEQ was first represented on the Task Force in 1973, and the EPA was first represented on the U.S. delegation at Caracas in 1974. Congressional input on this area has been slight. Third, the absence of effective action on land-based sources of marine pollution in UNCLOS is weak, but presumptive, evidence that environmental concerns are being overlooked on the grounds of "political reality." Fourth,and perhaps most important,the communication between scientists with knowledge of the marine environment, and international lawyers who negotiate agreements is conceded to be inadequate. Part of this problem arises within the environmental sciences themselves, and simply reflects the great uncertainties surrounding the physical effects of pollutants in the marine environment. But the problem also flows from the social sciences and the legal profession. What standards might be adopted by coastal states if they are granted broad environmental zones? Will regional environmental compacts in semi-enclosed ocean areas bea viable alternative to global conventions? What will be the spatial pattern of oil production, transport, and use over the next two decades? What environmental data are needed to. negotiate economically rational and politically feasible control agreements? To what degree will states tolerate international inspection of polluting activities? These are some of the questions that social scientists and policymakers should be addressing. Communication is necessary, but the uncertainties are equally distributed among the scientists and those formulating policy. 117 111 UNCLOS Progress, Options, Conclusions

The Single Negotiating Text Analysis of environmental issues within UNCLOS is risky on several counts. It is not clear whether any treaty will emerge, and if one does whether it.will be comprehensive and widely accepted. As noted elsewhere in this study, the Geneva session leaves these questions open. Moreover, itis not clear whether the Single Negotiating Text (SNT) provides an accurate blueprint of the final treaty, should one be agreed to. It is tempting to evaluate the draft articles of the SNT as though they were likely to become final, but as carefully pointed out by the Conference President, the single text should take account of all the formal and informal discussions held so far, would be informal in character and would not prejudice the position of any delegation nor would it represent any negotiated text or accepted compromise. It should, therefore, be quite clear that the single negotiating text will serve as a procedural device and only provide a basis for negotiation. It must not in any way be regarded as affecting either the status of proposals already made by delegations or the right of delegations to submit amendments or new proposals.

One must accordingly be cautious in attributing durability to the draft articles of the SNT. Finally, the committee structure of the Conference itself presents substantive and analytical problems. Topics were allocated to three Committees; discussion of a seabed regime to Committee 1, territorial seas, economic zones, continental shelf, etc. to Commit- tee II, and environment, technology transfer and scientific research to Committee III. Obviously there is an environmental dimension to each of these topics. Decisions taken concerning the structure and activities of the Seabed Authority, the rights and responsibilities of states within their territorial waters and economic zones, and technology transfers and marine research all have an environmental component. It becomes necessary to meld the separate work of the committees to evaluate UNCLOS progress. From a substantive viewpoint, a strong argument can be made that the initial decision to allocate topics in this fashion has two undesirable results. First, the opportunity to manage ocean space environment as a whole, reflecting its ecological unity, was lost. Second, some issues have apparently fallen between the stools, including a detailed environmental mandate for the Seabed Authority.

112 113 General Principles As expected, the SNT contains, as general principles, the obligation of states to protect and preserve the marine environment, to take all necessary measures to ensure that pollution from their activities does not cause damage to other states or to areas beyond those in which they exercise sovereign rights, and to guard against pollution diversion as discussed above. Release of toxic, noxious and persistent substances are mentioned in general terms but are not identified:21 The special circumstances of developing countries and the continued strong attraction of national sovereignty are recognized and illustrated in Articles 3 and 4:

Article 3 "States have the sovereign right to exploit their natural resources pursuanttotheir environmental policies and theyshall,in accordance with their duty to protect and preserve the marine environment, take into account their economic needs and their programmes for economic development."

Article 4 1. "States shall take all necessary measures consistent with this Convention to prevent, reduce and control pollution of the marine environment from any source using for this purpose the best practicable means at their disposal and in accordance with their capabilities, individually or jointly, as appropriate, and they shall endeavour to harmonize their policies in this connexion." While important as statements of purpose and principle, these general principles have little direct consequence.

Specific Action Deferred At numerous points, the SNT implicitly acknowledges that UNCLOS has not attempted to formulate environmental measures, but defers their development to other fora. For example, Article 6 calls for regional and global cooperation, directly and through international organizations, for the formulation and elaboration of "international rules, standards, and recommended practices and procedures" for the prevention of marine pollution. This document is quite deliberate in leaving open not only the substance of these rules, stanthirds and recommended practices, but also the bodies in which they are to be developed, and the extent to which they shall be regional or global in nature.

113 119 The significance of this is that regardless of whether the treaty emerges or not, the environmental fate of the oceans will probably be determined in large part through a long run, rather ad hoc, and perhaps disorderly process in which agreements may be reached (a) in particular regions (b) concerning particular pollutants (c) covering particular sources. In short, the present fragmentation of ocean environment policy formulation will probably continue. Accordingly, the several issues identified in the preceding section will remain importantissues such as selecting abatement levels through negotiations, shunting, and dual standards.

Land-Based Sources Article 16 cr rt III of the SNT sets forth a general obligation to prevent. redL and control pollution from land-based sources. How the obligation to prevent is consistent with reduction and control is not clear. To accomplish this, states shall establish national regulations, and shall endeavour to establish global rules, standards and recommended practices and procedures through international organizatons and diplomatic conferences. To keep dual standards for developed and developing countries an option, the rules, standards, etc. should take into account "the economic capacity of developing countries and their need for economic development." Article 19 calls on states t,) establish national controls on ocean dumping, and to endeavuur to establish global and regional rules, regulations and so forth, through intergovernmental organizations and diplomatic conferences. No saving clause for developing iuntries is inserted, and indeed 'the article provides that national laws be no less effective than global rules and standards. One reason for the stronger formulation of Article 19 over Article 16 is that ocean dumping was successfully dealt with at an international conference, and the broad outlines of dumping policy are now in place. One should not make too much of the proviso that national laws be no less effective than global rules. Recall that the Ocean Dumping Convention established few specific rules beyond the blacklist items, and left broad discretionary power, to national authorities. Finally. Article 21 calls on states to establish national laws to control marine pollution from the atmosphere, and obliges states to endeavor to establish global and regional rules, standards, etc. concerning atmospheric sources. No guidance is given as to where these should be negotiated, their relative urgency, or other factors. Inshort,controlling land-based sourcesisleftto national legislations, and whatever future agreements that can be concluded

114

120 among states. Vessels Military vessels are given sovereign immunity from standards and enforcement provisions.22 Article 20 declares that states should act through the competent international organizations or by diplomatic conferencetoestablish rules and standards for preventing, reducing and controlling pollution from vessels. Further, states shall establish national regulation for their flag vessels. These are injunctions to action, but do not ensure results. There is no saving clause for developtng country fleets. As argued earlier there is little justification on economic or environmental grounds for dual standards for developing country fleets, and the absence of a saving clause is a plus. With respect to coastal state authority, Article 20: permits coastal states to establish more stringent standards within its territorial sea, with an obligation to achieve the greatest possible uniformity with international standards. Coastal state standards should not hamper innocent passage. permits a state to apply to the competent international agency for designation of its economic zone as a "special area"if international standards are not available, or if they are inadequate to protect the area. If so designated, special mandatory measures could be applied against vessels by the coastal state. provides a saving clause permitting coastal state authority in the economic zone in areas subject to severe climatic conditions and a fragile ecological balance. does not contain language found in earlier drafts which excludedcoastalstateregulatim.ofshipsdesign, operating equipment, etc. In this convoluted manner, the SNT attempts to protect the legitimate interests of coastal states, and also the navigational rights for marine transport. The same objectives are present in the enforcement provisions on vessel pollution, and have led to an even more complicated web of rights and duties among coastal, port and flagstates. The enforcement provisions rest heavily on the existence of unambiguous and effective international rules and standards. Unless and until they are inforce, enforcement questions will center on national laws. Also, the breadth of coastal state enforcement power past its territorial sea has not been agreed to, but presumably will fall short of its economic zone.

115 121 Economic Zone (Non-Vessel) With regard to international constraints on coastal state activity within its economic zone, the SNT appears surprisingly weak. Unlike vessel source pollution, in which the coastal state can make a persuasive argument for environmental authority to protect itself from foreign shipping, there is no particular reason to give coastal states full authority over the environmental consequem es of their activ ities. On the contrary, to give coastal states full envii ()mental jurisdiction over nonyessel activity within their economic zones without residual international authority appears dangerous. As currently written in the SNT, Article 17 contains the familiar formulation wherein states are called upon to establish national reguldtions, and to act through intergovernmental organizations and conferences to establish rules, standards, etc. in order to prevent, reduce and control pollution from such activities as offshore oil production within their economic zone. Additionally, states are obliged through articles 13, 14 and 15 to: "keep under surveillance the effect of any activities which they permit or in which they engage to determine whether these activities are likely to pollute the marine environment"; to report to the UN Environ- mental Programme the results; and, "when states have reasonable groundsforexpectingthatplanned activities. ..may ci substmlt id I pollution of the riarine environment, they shall, a:, far as pract icab1e asses:, th, puhi 1,1 effects of such activities on the marinr !mvironchent do: snaii ,ommunicdte roports of the results of such a!,;e5smeti t s. ." In effect, coosfti onNs arc p.wen a free hand with regard to offshore oil pi 0'41 11, with sume mild reporting and assessment requirements. As with land-based sources, adequate protection of the marine environment will depend in large measure on the effectiveness of domestic environmental controls. Seabed Authority Theestablishmentand enforcement ofenvironmental regulations covering exploration and exploitation of the international seabed area (manganese nodule exploitation) was not considered in Committee III. Instead, they explicitly referred the probkm to Committee 1.2" Committee I work has resulted in extremely weak environmental requirements. Within the General Principles section, the only environmental obligationisto ensure the "orderly and safe development andrational management of the Area andits resource." Other provisions in this section deal with preventing 1 2 2 116 damage to land-based mineral praaicers. the benefit ' producers and consumers, sharing the benefits and so ft :01.C:insider next the environment article, 12: With respectto activ i tiesinthe Area, appropriate measures sball bc taken for the adoption aud implementation of international i :des, standar(ls and procedures for, it:ter ao: ta) The prevention of pollution and contamination, and other hazards to the marine environment, including the coastrine, and of interference with the ecological bai:ince of the marine environment, particiflar attention htting paid to the need for protection from the consequences of such ac- t iv ties as drilbng, dredging, excavation, disposal ofwaste,constructicaandoperationor maintenara:e of installations, pipelines and other devices related to such activities: fid The protectnm and conservation of the natural resourees of the Area and the prevention of damage to the flora and fauna of the marine environment. Note that the "Area- is earlier defined as the seabed and oce:ln floor and subsoil thereof. beyond the limits of national jurisdiction. The superiacent water column over the deep seabed is not included. Accordingly, refining activities located on the ocean surface in the neighborhood of the mining site would appear to fall outs.ide the responsibil: ty of the authority. This is given confirmation in the descriptionf activities covered in Article 12, in which there isno reference to refining activities. This is a serious omission,as some observers believe that the refining activities will createworse environmental damages than the extraction activity. The failure of CommitteeIIIto involve itself withthis area adds tothe seriousness of the omission. Note also that the language of Article 12 is weak, calling for appropriate measures to he taken for the adoption of rules, standards, etc. What are appropriate measures? Howsoon are they to be taken? Within the authority itself, Articles 28 and 31 would establish a technical commission to, inter alio,prepare assessments of the environmental implications of activities ia thearea, consider and evaluate these assessments, and recommend rules and regulations concerning the protection and preservation of the marine environment to the Council. In turn the Council shall adopt rules and regulations. No environmental impact statementsare 123 117 apparently required of (:ompanies or governments proposing to engage in mining.24 Finally, Annex I of Part I of the SNT contains the following language: In respect of rules, regulations and procedures for the following subjects the Authority shall uniformly apply the objective criteria set out below: ( 17)Protection of the marine environment. The Authority shall take into account in adopting rules and regulations for the protection of the marine environment the extent to which activities in the Area such as drilling, dredging, coring and excavation as well as disposal, dumping and discharge in the Area of sediment or wastes and other matters will have a harmful effect on the marine environment.

The obligation to "take into account" is not particularly reassur- ing.

Options for the United States The preceding analysis has set forth some basic principles concerning ocean environment policies, described important issues that remain open, and has analyzed the Geneva text with regard to the marine environment. In doing so, it proved useful to separate out environmental management questions from those of environmental jurisdiction, although the two were shown to be closely linked. Criteria for evaluating ocean environmental policy were presented in the introduction and elaborated in the text. These criteria apply more strongly to management than to jurisdictional questions. UNCLOS is primarily concerned with jurisdictional issues. Therefore ocean environment policies cannot be directly evaluated, but an assessment must be made of the policy implications of alternative environmental jurisdictional outcomes. Options for U.S. policy can be categorized along three dimensions: 1. According to the results of UNCLOS a. no treaty b. treaty similar to Geneva single negotiating text c. an "improved" treaty 2. According to particular pollution problems a. land-based sources b. vessel source pollution c. activities within the economic zone

118 12 activities in and under the high seas 3. According to institutional modes of action a. unilateral U.S. action b. regional bodies c. bodies set up by specific conventions d. international bodies such as IMCO e. United Nations Environmental Programme (UNEP) 1. a new international marine environmental authority

A full discussion of each would require up to 72 separate cases, and would be needlessly tedious and confusing. Instead we make the following points. 1. An International Environmental Agency, with broad powers to deal with all major sources and types of pollutants and to manage the environmental resources of the oceans from a global perspective, would be a desirable jurisdictionaloutcome on economic andecological grounds. The problems of choosing abatement levels, shunting. dual standards, coastal state jurisdiction, and land-based sources would be reduced. Such a regime is not atalllikely,in part because of the loss of national so% ereignty; alternative arrangements are necessary. 2. lf the ultimate treaty looks like the SNT, it does not appear that U.S. environmental interests would necessarily be immediately and seriouslyI.imaged. By U.S. environmental interests, we mean the ability to pursue rational ocean environment policies according to the criteria for rational policy set forth above. The reason the SNT would not directly damage U.S. interests is that the provisions are sufficiently broad to allow the United States to initiate andsupportawide range of marine environment agreements. Most of theinstitutional modes can be activatedreliance on the UN Environmental Programme for certain monitoring, information exchange, and coordination functions, strengthening IMCO with regard to vessel source pollution, concluding regional agreements where appropriate, etc. At the same time, it should be clearly recognized that adoption of the SNT in its present form would impair the longer term chances of developing rational environmental policies. This is because jurisdiction over the economic zones (the environmentally most sensitive area) would go to coastal states without effective safeguards by the

119 125 international community. Such a system would reduce but not preclude rational environmental management.

3. The option of working for an "improved" SNT would be better for U.S. interests than settling for the current text as it concerns environmental questions. Modifications might include an explicit requirement either to convene an internationalconferencetoestablishinternational regulations on offshore oil production or to expand the IMCO Environment Committee functionstoinclude monitoring and rulemaking in this area. Also, the seabed authority could be given responsibility for open ocean refining activity and the draft language could be tightened. Internationally formulated minimum standards for activities within the economic zone would help protect the interests of the United States and the international community. 4. Another option is no treaty, with unilateral extensions of coastalstatejurisdiction. This outcome would not necessarily damage U.S. ocean environment interests if other modes of ocean environment policy formation are actively pursued. Indeed, the emphasis in UNCLOS on questions of jurisdiction rather than management, suggest that these other modes should be activated in any event. 5.The three options described above, current SNT text, "improved" text, and no treaty, all suggest that U.S. ocean environmental interests will require use of a variety of other channels and fora. Regional agreements for semi- enclosed areas seem particularly promising, as fewer parties are involved, the benefits may be more visible, and compensation payments easier to contemplate. Moreover, pollution problems tend to be more acute in coastal areas and in closed and semi-enclosed seas. There has been some progress already. The Baltic Sea Convention and the Paris Convention concerning the North Sea both contain provisions on land-based sources, although it is too early to determine their effectiveness. Other areas, not necessarily related to the United States, which might besubjecttoagreements include the Caribbean, Mediterranean, Caspian and Black Seas, and the Persian Gulf. At a minimum a joint commission might be established to monitor and recommend on environmental (and other) issues of shared resource use. 6.The United States has a general interest in preserving the

120 123 marine environment, in minimizing tension with developing countries over environmental issues, and in assisting them in economic development. Accordingly, we should not be indifferent to their environmental use of the oceans. At the same time the industrial countries, including the United States. are probably pre-empting the greater part of the assimilative capacity of the oceans and contributing disproportionately to ocean environmental deterioration. It would therefore be equitable and in our interests if we provided some form of assistance to them for environmental control purposes. This could take several forms depending on circumstances. Provision of abatement technology and abatement equipment below cost is one alternative. Direct payments, perhaps through a regional arrangement, is another. Technical assistance in conducting abatement cost-benefit analysis is a third. These and other policy alternatives should be explored further. 7. Unilateral action by the United States (and by others) with regard to marine pollution is another option. Unilateral action may be especially important with regard to land based sources as they are not effectively covered at UNCLOS. and regional arrangements may not be easy to arrange. In this connection, the incidental benefit to the marine environment of measures taken primarilyto conserve domestic environmental resourceswill be important. The phase-out of DDT in the United States is one example. In contrast, a unilateral declaration of a 200-mile pollution control zone, such as is found in S.1341, may damage certain U.S. interests. The bill, which would extend U.S. jurisdiction over shipping within the zone, would undercut U.S. efforts in UNCLOS to maintain free navigational rights subject to internationally formulated environmental standards. Even if no treaty is produced at UNCLOS. vessel source pollution should be regulated by an international body such as IMCO for the reasons explained earlier. 8.One conclusion from this chapter is that the data base for establishing ocean environment controls remains weak. The United States can continue to improve its own research capability in this area in both the natural and relevant social sciences. Research results can be dis- seminated, internationally as well as domestically, and especially to developing countries.

121 127 ' A technical definition of marine pollution might be reciprocal external environmental diseconomies affecting an international common propriety resource. A widely used international (lefinition is the introduction, by man, of substances or energy into the marine environment with deleterious effects such as health hazards, harmticlivirg resources and marine ecosystems, damages to amenities or interference with legitimate uses of the sea. This section is taken front C. Pearson, "International Externalities: The Ocean Environment," paper presented at the Ford Foundation Symposium on Internationol Ecmmmic Dimensions of En vironmentol Management, New York University. April 17-18, 1975 I to he published). ' EPA estimates total hydrocarbon emissions for the United States at 27.3 million tons for 1970. Emissions reaching the oceans are estimated at .8 million teens. 4 The extent of ocean envinmment deterioration is not examined here. There is no question that !ocal deterioration is widespread. The extent of more global threats, including the pen oc-ans, through pesticides, heavy metals, petroleum, etc. is more controx ersial. real resources would have been wasted by denying free access and through unnecessary enforcement costs. ^ An excepti m may he the regional co.evention for the prevention of pollution from land-based sources signed in Paris. 1974. It is too early to evaluate the effectiveness of this instrument. Considered to be 3-mile territorial sea plus 9-mile contiguous zone. " It should be emphasized that the criterion of economic rationality embraces not only benefits and costs that are readily measured in monetary terms, but also environmental services which contribute to welfare such as aesthetic enjoyment of natural resource's. Mort' formilly, the marginal abatement costs among waste disposers should be equal. 1" A system eif effluent charges correctly set will provide an incentive for polluters with a cheap alternative to octin disposal to undertake more abatement than those facing high alternative costs. Thus greater abatement can be accomplished at a lower real resource cost. " See Pearson, op. cit. If damages are strictly local, in the sense that the coastal state both pollutes and bears the full damages. unilateral action will achieve optimal abatement levels. This is a trivial formulation of the problem, however, " The free rider problem in negotiations arises because one or more participants may be reluctemt to reveal their true preferences, hoping for the group as a whole to give them a "f4ee ride.'' " Optimal abatement levels would equate the marginal abatement cost from each source with marginal benefits to itself and all others. 1' The Oceal Dumping Convention resolves the dilemma by according wide discretionary power to domestic authorities. Accordingly. members of the agreement retoin the right to choose their own abatement objectives. This does not apply to the so-called blacklist items. While it is correct to modify abatement levels in light of loced conditions. an agreement that leaves standard setting to national authorities is not much improvement on unilateral action. 16 For example. the Ocean Dumping Convention was developed concurrently with U.S. legislatiol. '7 For example, sewage sludge can be disposed of through river and marine out falls, ocean dumping, burning, and land disposal (with possible leaching and contamination of ground waters). Consider Philadelphia, which currently dumps 150 million gallons of sewage sludge annually less than 40 miles from Ocean City, Maryland. At EPA permit 123 122 hearings, city officials claimed that high lwav y metal content (500 lbs. mercury. 12.000 lbs. catinnum) precludes burning, that land disposal sites are unavailable, and that the only alternative to ocean dumping is disposal inhe Delaware River. Article 5, Part III of the Informal Single Negciiating Text. In the Trail Smelter Arbitration Case, smelter operadoir, in Canada were causing atmospheric pollution damages to trees and crops in ;he United States. The Tribunal examining the claim held that when serious injury is established it is unlawful for one state to permit activities which directIN damage another state. Canada complied and modified its activities. Articles 2, 4, 5 of Article 42, Part III. Articles IR and 24 nf Part III, SNT. The enthusiasm with which the technical commisvion will undertake its environmental responsibilities is not known. According to Article 31 its members Should have qualificat ions and experience in marine mining and mineral processing. etc., but also in ocean and environmental sciences.

129

123 CHAPTER 6.

FISHERIES

Introduction

U.S. fishing activities fall into several categoriesrecreational or sport fishing, scientific research and commercial fishing. The commercial fishing industry shares a single goalto produce and market seafood. Apart from this common purpose, the industry is highly fragmented. It is divided into producing and processing segments. but more important from a law of the sea point of view is the division of industry according to location of fishing effort and species harvested. In terms of area fished, some segments of U.S. industry fish off the U.S. coast while others fish in distant waters. Coastal fishermen harvest a variety of species which are found, for the most part, withirr 200 miles of shore. Different international legal regimes presently apply to sedentary living resources of the continental shelf as compared to pelagic (oceanic) species. U.S. fishing for anadromous species (those spawning in fresh waters) takes place relatively close to or in the spawning rivers although salmon may travel far beyond 200 miles from shore. Distant water U.S. fishing can similarly be divided according to species harvested. Operating out of San Diego, the U.S. tuna fleet is harvesting a highly migratory species that ranges great distances, within and beyond 200 miles from shore. The U.S. shrimp fleet, on the other hand, fishes within 200 miles of shore off the United States, Mexico, Brazil, and other Latin American nations. A number of factors are relevant to a review of U.S. policy options concerning fisheries. They include the economic value of fisheries to the United States as well as the domestic politics of fishing, and international political and legal factors. A brief review of the evolution of U.S. fisheries policies in the context of the UN Law of the Sea Conference provides the background for understanding present U.S. policy and the U.S. reaction to the single negotiating text that emerged from the Geneva session of the Conference. The outcome of the Conference is one of several variables that set the parameters for determining U.S. policy options. Among the criteria for evaluating fisheries options are management goals of economic efficiency and feasibility goals in terms of internationally vigNet Tildes of action. 1. 0 "J

125 Economic Value of U.S. Fishing' Among fishing nations, the United States ranks fourth in terms of value and fifth in volume of fish harvested. While the United States fishes off the shores of other nations, the bulk of its catch is taken off the North American coast, and over 60 percent of its commercial marine catch by volume is taken within 12 miles of shore. Of marine resources harvested off the United States, U.S. fishermen caich less than 25 percent, while the remainder goes to foreign fisheries. In1974 the total value of the5.1 billion pounds of U.S. commercial landings was over $967 million, while fish imports amounted to $1.7 billion. Fish products worth $2.8 billion were processed from domestic and imported raw materials. In 1973 there were around 87,200 full-time and 73,000 part-time fishermen in the U.S., and processing and wholesale plants employed a seasonal average of around 93,700. Of the landed value of U.S. fish, the salmon industry accounts for $121 million, and the tuna industry for $163.7 million. The shrimp industry, at $177.9 million in 1974, is the leading U.S. dollar producer, amounting to around 19 percent of the revenues generated from the American fishing industry. The distant water vessels of the U.S. shrimp fleet are among the most efficient and well equipped and account for catches equivalent to about a sixth of the entire U.S. shrimp catch in the Gulf of Mexico. In addition to the above mentioned salmon, tuna, and shrimp, other species caught by U.S. vessels within 200 miles of U.S. shores account for $470 million. Approximately $1.2 billion was spent on recreational fishing in 1970, the latest year figures were available.

Domestic Politics of Fishing Although fishing, in economic terms, is less important than other U.S. interests such as offshore petroleum, politically, the fishing interest is powerful. Fishing was once the foremost industry of the United States. Although the United States has slipped from first to fourth place among fishing nations, the fisherman continues to occupy a special social and cultural role in this country. The lone fisherman exemplifies a way of life, much as the small farmer once did, in American history. While the nation's farming has become a large-scale operation, the same transition has not occurred in most segments of ;he U.S. fishing industry. Indeed, large-scale fishing off U.S. shores is associated with foreignerswith Soviet and Japanese fishing fleets and factory v essels. Therefore, although the U.S. tuna fleet is the most modern in the world, the popular image of highly mechanized fishingfleetsisassociated with foreign operations.

126 13 To some extent the factofforeignfishing activities has contributed to the political effectiveness of U.S. coastal fishing interests. The foreign fisherman has no votes and has served, therefore, as a convenient stimulus for congressional action to extend U.S. fisheries jurisdiction. Such extension wouldseem politically (:ostless were it not for the international repercussions that would affect political relations with the Soviet Uniort and Japan as well as other U.S. interests in the oceans. Since salmon range far beyond 200 miles from shore, a 200-mile limit would fail to protect them and would also invite action against U.S. distant water fishing interests such as shrimp and tuna. For this reason, the salmon, shrimp and tuna segments of the U.S. fishing industry have opposed 200-mile legislation. Due to the impetus behind such legislation, opposition to the bill by segments of the fishing industry is perhaps more politically effective than the opposition of the Departments of State and Defense. These agencies have consistently warned that U.S. global and maritime interests would be seriously affected by the retaliatory or imitative actions that would follow a unilateral extension of U.S. fishing jurisdiction. Despite these admonitions, the U.S. Senate p issed a 200-mile extension bill (S.1988) on December 11, 1974 by a vote of 68 to 27. This legislation was designed to extend the U.S. contiguous fisheries zone to 200 nautical miles (including' the territorial sea) and give the U.S. management authority over salmon spawning in U.S. rivers throughout their migratory range. As drafted, the measure would have terminated when the Law of the Sea Conference reached an agreement on an acceptable treaty. S. 1988 lapsed with the 93rd Congress but was reintroduced in both houses of the new Congress. A large number of fishing bills, embodying substantially different approaches to fisheries management,were subsequently introduced before the 94th Congress. By thesummer of 1975, the House Merchant Marine and Fisheries Committeesaw the advisability of combining the various bills intoa single piece of legislation that would satisfy diverse fishing interests. According- ly, H.R. 200 was "marked up" with amendments that attempted to resolve some of the critical points at issue in earlier bills. An examination of some of these earlier bills, together with the responses they elicited, provides a useful insight into the various groups that have been actively concerned with thedetermination of U.S. fisheries policies. In its original form, H.R. 200 reflected, primarily, a concern for U.S. coastal fishing interests. It provided for the extension of U.S. fishing jurisdiction to 200 miles, andover anadromous species wherever they might migrate in the oceans. It called for managing highly migratory species, suchas tuna,

127 1'3)' through international arrangements. The coastal fishing industry supported H.R. 200's immediate acceptance to prevent further depletion of offshore fisheries. Despite provisions for anadromous and highly migratory species, the bill was opposed by the tuna and salmon industries as well as by the shrimp industry. These groups pointed out that the bill was simply exclusionary of foreign fishing interests without providing for conservation guidelines or for fisheries management and full utilization.Spokesmen for the salmon industry stated that to proceed unilaterally would not protect the fishery since it would require a surveillance and enforcement effort far beyond the U.S. capability to implement. The United States, it was pointed out, would not even be able to enforce a 200-mile fisheries zone, much less an extended regime for salmon. To proceed unilaterally via H.R. 200, in the view of noncoastai fishing interests, would simply invite retaliation against U.S. distant water fishing without providing an adequate scheme for protecting U.S. coastal fishing from overfishing by U.S. fishermen. An alternative approach was advanced in H.R. 1070 which, with its clarifying amendments, was supported by noncoastal fishing interests and various internationally oriented groups. It did not call for a 200-mile zone and it would have applied conservation measures to all fishermenU.S. as well as foreignonthe basis of Article 7 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas. According to this bill, the Secretary of Commerce would establish conservation measures to protect fish stocks in areas believed to be overfished. The United States would negotiate conservation measures with appropriate foreign fishing nations for a six month period. At the end of the six months, if agreement was not forthcoming, the Secretary of Commerce could proceed unilaterallyto apply conservation guidelines to all vessels operating in the designated areas. The main advantages of the H.R. 1070 approach, in the view of its supporters, were that it was consistent with international law, preservedthe U.S. position in the LOS Conference, and did not threaten to provoke a rash of unilateral 200-mile extensions by other states. Coastal fishing interests opposed H.R. 1070 as worse than no legislation at all. They pointed out that only 33 nations have signed the Geneva Convention on Fisheries and that Japan and the Soviet Union are not among the signatories. These major fishing nations would not be bound by legislation based on a treaty to which they were not a party. Moreover, the coastal fishing interestshaN e argued,abill which does not discriminate against foreign fishermen would threaten preferential rights which U.S. fishermen

128 133 have already acquired in offshore fisheries. It would lack the clarity and effectiveness of a simple move to create a 200-mile zone. H.R. 3412 was designed "To Extend the Fisheries Management Responsibility and Authority of the United States over Fish in Certain Ocean Areas in Order to Conserve and Protect Such Fish from Depletion and for Other Purposes." It was opposed by U.S. coastal and distant water fishing interests for different reasons. Internationalists and the distant water fishermen objected to its provision for establishing a 200-mile management zone although they supported many of its ideas for management. U.S. coastal fishing interests, on the other hand, opposed the management provisions of H.R. 3412 as an attempt by the Administrator of the National Oceanic and Atmospheric Administration (NOAA) to gain new, far reaching powers for its National Marine Fisheries Service (NMFS). This agency, they argued, has never been responsive to the best interests of the fishermen and knows little about the fishing industry. Coastal interests preferred to extend U.S. fishing jurisdiction immediately and adopt management provisions later under a system in which they would have a greater input than provided for in H.R. 3412. The premise behind H.R. 3412 was that management provisions must be spelled out in any move to extend U.S.fisheries jurisdiction. The bill would have given the NOAA Administrator the authority to promulgate management regulations to conserve offshore fisheries and would have created agencies to manage fisheries at the State, regional and national levels. It would have established an advisory board and council for public input into fisheries management. Among the provisions of H.R. 3412 was a basis for determining license fees which would have provided that ten percent of fees collected from foreign vessels fishing in the U.S. zone would be used to defray the cost of licenses required of U.S. vessels fishing off other nations. In this and other respects, H.R. 3412 was applicable to a post-treaty as well as a pretreaty situation, assuming thetreatyfavors 200-mile economic or resource zones. The marked up version of H.R. 200, which differs in some respects from its companion bill in the Senate (S.961), does attempt to accommodate the interests of those segments of the industry which had responded negatively to its earlier coastal orientation. It provides thLt by July 1976 the United States would declare authority over coastal and anadromous species, managing coastal resources out to 200 miles and anadromous stocks on the high seas. To satisfy the U.S. distant water fishermen, the bill requires the Secretary of State to negotiate access for U.S. fishermen to fish

129 134 stocks within 200 miles of foreign nations. If a nation refused to negotiate in good faith,it would be prohibited frbm exporting seafood into the !nited States. The bill does not include provision for highly migratory species, indicating that they are to be regulated by international commissions. It does, however, establish a rather complex management plan for the purpose of achieving "optimum sustainable yield"a goal which is defined to include biological, ecological, economic and social considerations. While the Congress worked to develop a compromise that would satisfy diverse fishing interests, officials in the Department of State contemplated drafting legislationthat would preserve relations with foreign governments while meeting domestic fishing needs.Ultimately the State Department resolvedto oppose unilateral fishing legislation on the grounds that the international resolution of the law of the sea issues was preferable to proceeding unilaterally. The Secretary of State, in an address before the American Bar Association, specifically linked the Administration's opposition to 200-mile legislation to a U.S. resolve to conclude the Law of the Sea Conference in 1976.2

U.S. Policy and the Law of the Sea Conference

The domestic debate over legislation has been strongly affected by the international context. Major international factorsare heavy offshore fishing by foreign nations, the extension of fisheries jurisdiction by other nations (ten countries have unilaterally extended their jurisdiction to 200 miles), and the ongoing UN Conference on the Law of the Sea. Among the many issues under consideration by the Law of the Sea Conference, fisheries is one of the most complex and most sensitive politically. At the international level, it provokes divisions between the North and South, between the distant water and coastal fishing states, and between the land-locked and ge-Igraphically disadvantaged states, and neighboring coastal states.

Evolution of U.S. Policy The U.S. fishing interest is beset by divisions within the fishing industry, international disagreements about the ocean regime, and differences of opinion with other U.S. ocean interests. AB of these variables must be taken into account in understanding the evolution of U.S. fisheries policy in the context of the Law of the Sea Confeeence. In the events leading up to the Conference, the first

130 official U.S. policy statement dealing with fisheries was made in February of 1970. At that time, the U.S. Government indicated its willingness to negotiate an international treaty that would fix the limit of the territorial sea at 12 miles, provide for freedom of transit through and over international straits, and carefully define preferential fishing rights for coastal states on the high seas. This tripartite set of proposals reflected a balanced set of quid pro quos from the U.S. point of view. The United States would recognize 12- mile territorial seas only if freedom of transit were guaranteed through straits that would be ovorlapped by 12-mile territorial waters. Preferential fishing rights were included as a third part of the package with the hope of appeasing coastal fishing interests at that time. Nine Latin American nations had claimed zones of 200 miles, avowedly to protect fishery resources off their shores. To halt the trend toward such claims and to induce these nations to roll back established claims, the United States proposed that special or preferential rights to offshore living resources be granted to coastal states. According to the concept of preferential rights, a coastal fishing nation would be able to reserve a portion of the catch off its shores for its own fishermen. The amount would be determined by the coastal state's economic dependence on or extent of investment in offshore fisheries. The 1970 proposal deliberately avoided the concept of a fishing zone that might ultimately evolve into a fixed area of expanded coastal state jurisdiction. A no!able feature of the 1970 tripartite policy was the lack of any input by domestic fishing interests. The U.S. provisions on fisheries sought to balance Soviet and Japanese distant water fishing interests with the coastal interests of developing nations in order to persuade the latter to accept 12-mile territorial seas and freedom of transit through straits. In effect, the U.S. fisheries position in 1970 was designed to meet the concerns of other nations for the purpose of facilitating an international agreement on straits. The reasons for the lack of an industry input into fisheries policy were twofold. In the first place, fishing interests were simply not aware that discussions affecting their interests had been underway within the U.S. Government and with other governments. Secondly, the differences between various segments of the industry made a policy input difficult. The February 1970 statement on fisheries, although sketchy, was sufficient to alert the industry to discussions in progress and to act as an inducement to concerted action. Distant water segments of the U.S. fishing industry had the same negative reaction to a preferential rights approach as the Soviet Union and Japan. The U.S. coastal fishermen, like developing coastal nations, favored

131 13'0 expanding coastal state fishing rights and were happy to see movement in this direction. Neither segment of the industry, however,washappyaboutbeingexcludedfrompolicy deliberations. Despite their differences, coastal and distant water fishing interests recognin-d that they would have to act in concert if they were to have an input into U.S. fisheries policy. In order to gain a voice in policy formulation, the fishing industry began to exert pressure on a number of fronts in 1971. With congressional support, two executive branch voices forthe industry gradually strengthened their positions viga vis other actors in the law of the sea policy process. In the State Department, the Special Assistant to the Secretary for Fisheries and Wildlife was appointed the Coordinator for Marine Affairs in January 1971. The creation of the National Oceanic and Atmospheric Administra- tion in the Commerce Department in 1970 hadseen the transfer of Interior's Bureau of Commercial Fisheries to NOAA's National Marine Fisheries Service. No longer having to compete with petroleum interests for the attention of top officials in Interior, fisheries interests were able to play a larger role in LOS fisheries policy with the help of NOAA officials. I'LL industry has exerted leverage on the Congress not only at the S!ate level but also through its various Washington offices and throu:h I National Fisheries Institute and National Canners Association. Whena private Advisory Group on Law of the Sea was formed in 1972, the industry mobilized its congressional support to obtain two seatson the U.S. delegation for its fisheries subcommittee. While the extra seat reflected continuing differences among coastal, anadromous and distant water interests, the desire for a voice in the policyprocess promoted a degree of cooperation. The adoption of the "species approach" as official U.S. policywas the most notable product of industry cooperation. Itwas first elaborated, together with the U.S. positionon straits and the territorial sea, on July 30, 1971, before the UN Seabed Committee, The species approach appliedthe conceptof coastal state preferential right s to coastal and anadromous stocks of fish beyond an exclusive fishing zone of up to 12 miles. Coastal states would not have preferential rights to highly migratory oceanic species suchas tuna, thereby protecting the U.S. fleets off the west coast of Latin America. To provide for U.S., Soviet, and Japanese fishing off the shores of other nationsat least temporarilythe United States proposed that the fishing capacity of a coasttll state be used to determine the extent of its preferent ial rights in its offshore fishery. As thatcapacity expanded,so would the coastal nation's preferential rights, leaving, of course, the problem of how to phase

132 out fishing efforts of other nations in the area. To deal with this and other problems, the U.S. proposal included provisions for international cooperation in inspection and dispute settlementas well as joint conservation measur prevent overfishing. Only if all other measures failed was ui. .eral state action deemed acceptable. Like the 1970 U.S. seabeo proposal, the U.S. species approach of 1971 envisioned a strot,-; role for international and regional organizations in the reguld .;, n of high seas resources and sought thereby to ieduce pressure for unilateral extension of coastalstate control over offshore resources. As elithorated in 1971 and as revised in 1972, the species appi hr -presented an effort to accommodate U.S. fisheries polity tihe prevailing trend toward resource zones of up to 200 miles. Canada's expanded fishery jurisdiction had gone into effect in February 1971. Brazil had applied restrictive fishing measures to a distance of 200 miles. Most significantly, even Malta's Am- bassador Pardo had spoken out in favor of a 200-mile resource zone. Within the government the issue of fisheries received a great deal of attentionthroughout1971.Theviabilityofapplyingthe trusteeship concepttofishery resources or alternatively of accepting functional or resource zones was the subject of a National Security Study Memorandum soliciting agency responses. The objective of this review was to straighten out U.S. policy priorities among the diverse issues under consideration by the United Nations Seabed Committee. The apparent result of the review was to disentangle fisheries from other considerations. In August 1972, when the United States next introduced draft articles finI isheries to the UN Seabed Committee, they were no longer linked to territorial sea and straits policy. In the fisheries articles as well as in seabed policy statements, there were further concessions granting the coastal state jurisdiction over offshore resources. U.S. distant water fishing interests played a role in drafting the article, as evidenced by retention of the species approach, but majority international sentiment for wide fishing zones was also a major factor behind the 1972 revisions in U.S. fisheries policy. The new articles provided that the coastal state would regulate harvesting of coastal and anadromous species and that international fisheries organizations would regulate highly migratory stocks. The coastal state had the right to reserve to its flag vessels all the stocks it could harvest. Above that level and to the point of scientifically determined maximum sustainable yield, the coastal state would grant access to other fishing states with priority to those histwically fishing the area and then to other states in the region. As its own fishing capacity increased, the

133 13(3 coastal state would reduce the amount of catch allocVed to the other states. The United States reiterated the species approach in meetings of the Seabed Committee in 1973. Then at the 1974 Caracas session of the Law of the Sea Conference, the U.S. moved to accept a 200-mile resource zone. The U.S. draft articles on the economic zone and continental shelf3 attempted to combine the species approach with a zonal approach. The articles stipulated that the coastal state would exercise jurisdiction and sovereign and exclusive rights for the purpose of exploring and exploiting the natural resources of the 200-mile zone. In regulating fisheries within the zone, the coastal state would insure conservation andfullutilizationof the resources. The coastal state would establish the allowable catch, within which limit it would harvest up to its full capacity. Traditional fishing states and states of the region would be licensed for a reasonable fee to harvest the remainder of the allowable catch. Fishingfor anadromous species would be prohibited except as authorized by the state of origin. And management of highly migratory species would be governed by regulations established by regional or international organizations. The organization would establish allowable catch, allocation regulations and rules for the collection and payment of licensing fees. Since Caracas, the U.S. species approach to the 200-mile zone has remained unchanged. The evolution of the U.S. fisheries position after 1970 in an increasingly coastal direction and the U.S. acceptance in 1974 of a 200-mile resource zone were in response to strong domestic and international pressures. The pressures to expand coastal state jurisdiction have remained constantboth domestically and internationallysince the Caracas session. The Administration, however, appears committed to opposing these pressures, at least until the 1976 meeting of UNCLOS III.

The Single Negotiating Text While the Geneva sessionof UNCLOS IIIwitnessed an increasingly complex set of political interactions, particularly with the fragmentation of the Group of 77 on some issues and the emergence of the land-locked and geographically disadvantaged states, the concept of a 200-mile resource zone seems to have achieved a high degree of acceptability. There remain, however, significant international differences of opinion with regard to the actual powers of states within 200-mile zones. At one end of the spectrum, a few South American states support a 200-mile

11343 territorial sea or its functional equivalent. At the other end of the spectrum, the United States and other maritime nations would like to see coastal state jurisdictionin the zone limitedto the management of resource-related activities with strong international rights and regulations to apply to other activities in the zone. In many respects, the single negotiating text produced by the chairman of Committee II does not protect U.S. distant water and maritime concerns in an offshore zone. This is especially true of the texts's provisions on highly migratory fisheries. With regard to coastal and anadromous species, however, the U.S. position has been substantially realized. The Committee II text deals 14 it h fisheries only under the heading of the exclusive economic zone. Article 45 grants the coastal state "sovereignty rights for the purpose of exploring and exploiting, conserving and managingthe natural resources, whether renewable or non-renewable," of the exclusive economic zone. Coastal state rights and responsibilities include the right to determine the allowable catch of living resources in the zone for the purpose of achieving the maximum sustainable yield of fisheries populations (Article 50). This determination should take into account the best evidence available to the coastal state. Data relevant to the conservation of fish are to be contributed through appropriate international organizations and by all states concerned with a fishery. The coastal stateisalso given the right to determine the "optimum utilization" of living resources in its zone (Article 51). Where the coastal state does not have the capacity to harvest the entire allowable catch, it shall give other states access to the surplus, taking account of various factors such as the importance of the resource to the coastal state, the interests of neighboring land- locked or geographically disadvantaged states, the interests of other states in the region, and the concerns of states that have traditionally fished the area. In this listing, the interests of distant water states traditionally fishing within 200 miles of shore appear as one of several considerationsa fact that may prove dishearten- ing to the U.S. shrimp and tuna fleets. The terms and conditions which may be established by coastal state regulations are numerous andfar-reaching. Thecoastalstate mayissue regulations regarding licensing, the size of licensing fees, the species that may be caught, the size of the quotas, the seasons and areas of fishing, the gear to be used, the age and size of fishthat may be caught and the information to be required of fishing vessels. Coastal state regulations may also apply to fisheries research, which it will authorize and control, to the disposition of samples, to 1 1 0 135 the placing of trainees on research vessels,to the landing of all or part of the catch of research vessels in the ports of thecoastal state, and to requirements for training personnel andtransfer of fisheries t echnology. Apart from an annex listing highly migratoryspecies of fish, the Committee II text has only one article dealingwith migratory species. Article 53 describes regulation of thisfishery as "regala- lion by the coastal state in its exclusive economiczone of fishing for the highly migratory species listed inthe annex." To ensure conservation and optimum utilization of suchspecie3, the "coastal State and other States whose nationals fishhighly migratory species in the region shall cooperate directlyor through appropriate international organizations." This articledoes lot go far toward meeting the U.S. position that highlymigratory species must be regulated by regional organizations ifthey are to be effectively managed. In a sense, Article 54 dealing with anadromousspecies is more successful in positing a cooperative approachto the management of the species in question. It states thatthe coastal state in whose rivers anadromous stocks originate "shall haveprimary interest in and responsibility for such stocks."The state of origin shall establish regulatorymeasures for fishing within the economic zone and for fishing by other states in otherareas. After consultation with other states fishing these stocks, thestate of origin may establish total allowable catches for stocksoriginating in its rivers. Fishing for anadromous stocks shall beconducted only within exclusive economic zones except when thisprovision would result in economic dislocation for otherstates. The state of origin "shall co-operate in minimizing economic dislocationin such other States," taking into account the normalcatch, mode of operation and areas fished. The possibility formeaningful cooperation is promoted by the provision for specialconsideration in harvesting of stocks to be given to those statesthat participate by agreement with the state of originon measures to renew anadromous stocks, particularly through expenditures for thatpurpose. Thus, special expenditures to maintain spawningrivers could be the joint responsibility of all states interested infishing the stock. The article dealing with anadromous speciesis the only one in which cooperative approaches are spelled outperhapsbecause the salmon issue was viewed asa problem among developed states by the El Salvadorian chairman of the SecondCommittee. In all other articles on fisheries, the rights of thedeveloping coastal state are stressed. Articles 57 and 58 dealing with land-lockedand geographically disadvantaged states would appear to be similarly biased in favor of developing coastal states. Although article 57 provides that land-locked states have "the right to participate in the exploitation of the living resources" of the zones of adjoining coastal states, this right is to be exercised "on an equitable basis, taking into account the relevant economic and geographic circumstances of all the States concerned." Similarly, developing coastal states of a region which can claim no zone of their ownor are "particularly dependent for the satisfaction of the nutritional needs of their populations" on fishing in the zones of neighboring states have the right to fish in the zones of other states in the region "on an equitable basis," taking economic and geographic circumstances intoaccount.Land-locked,geographically disadvanted, and regional fishing states are somehow to pursue this right with states concerned through bilateral, subregional or regional agreements. The stress on coastal state rights elsewhere in the text would give other stateswhether land-locked, traditional fishing states, or disadvantaged stateslittle leveragetoeffect a cooperative management approach, much less a right to fish. Indeed, it is not difficult to foresee unconstrained authority in the hands of coastal states. The provisions of article 60 with regard to enforcement bear out the primacy of the coastal state. In the exercise of its sovereign rights the coastal state may "take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations enacted by it." Nowhere in the articles on fisheries is there any reference to provisions for compulsory settlement of disputes. The coastal state is rule maker, enforcer and arbiter when it comes to fishing activities in its 200-mile zone. The U.S. reactions to the fisheries provisions of the Geneva text are several. The U.S. Government will probably find the absence of restrictions on coastal state rights unacceptable although the provisions for coastal state management will probably be sup- pated. Indeed, should a treaty be enacted listing possible coastal state regulations along the lines of the Geneva text, the Federal Government would have very useful leverage vis a vis U.S. coastal fisheries for enacting national management legislation. The coastal fishing industry, on the other hand, supports the strong emphasis of the text on coastal state rights in the economic zone but argues that the government cannot await a law of the sea treaty and that it must proceed unilaterally to enact 200-mile legislation. These interests do not favor the provisions of article 51 which spells out possible coastal state management regulations. They prefer to

137 1.12 extend offshore jurisdiction first and attend to management problems later. The tuna industry is understandably distressed with the text's provision for coastal state management of highly migratory species with only weak references to international cooperation. Anadromous fishing interests, while perhaps wishing more protective language, would find a treaty which incorporates the Geneva provisions a useful basis for negotiating withstates fishing U.S. salmon. As discussed earlier, the Geneva texts are the product of the chairmen of the three main committees and,as such, do not necessarily reflect a negotiated treaty outcome. The extentto which the provisions of the text approximate theoutcome that wouldhave been reached if an item had been negotiated varies from issueto issue. In the case of the provisions on fisheries, the Committee II chairman relied to a substantial ex'enton the text negotiated within the Evensen group except' for the articleon highly migratory species. The fisheries provisions might therefore be viewed as approximating the outcome that would have been negotiated. Of course, whatever the language of the Genevatext, it is not at all certain that a final treaty will embody similar provisions, or even that there will be a final treaty.

Options for the U.S.

U.S. policy options in the area of fisheries may be considered in terms of several criteria. These may be divided into two sets of issues: economically efficient management of theresource and feasible modes of actionto implement management goals. . Economic as well as biological management goals may be pursued in the context of an international fisheries regime. Otheraspects of an economically and biologically rational fisheries policy would include the establishment of property rights through management schemes for ecological systems of fish,on a species by species, zonal or regional basis, as appropriate. Difficult political issues which must be considered are: the legal content of coastalzones; the extent of coastal state authority; the terms of access for states exploiting a fishery; and special rights for categories of states such as land-locked and developing states. The implementation of U.S. policy options may be considered in terms of the available modes of action. These range from strictly national decisions through international cooperative arrangements. And finally, U.S. options

138 143 in the area of fisheries must be considered in terms of the international situation that will emerge from the Law of the Sea Conference. The international environment will be determined in large measures by whether or not there is a treaty and by whether the U.S. subscribes to its contents.

A Management Approach to Fisheries Historically, the focus of national and international fisheries regulation has been biological. Most management schemes and regional commissions have been established toconserve fishery resources or maintain stocks at the level of maximum sustainable yield. The 1958 Geneva Convention on Fishing and the Conserva- tion of the Living Resources of the High Seas is basedon such biological goals. Under this type of approach, the assessment of stock size, range, recruitment, natural fluctuations of stock, and other features has become more sophisticated. Regulatory techniques based on biological goals include catch quotas, closed areas, closed seasons and techniques which alter or restrict fishing effort such as boat size, gear restrictions and so on. These methods reflecting exclusively biological goals are used by local fisheries and international commissions. They have sometimes resulted in highly inefficient fishing practices and in overcapitalization of some portions of the fishing industry. In recent decades, attention has been given to regulatory approaches basedon economic as well as biological goals. Rather than adopt techniques that hinder technological innovation and lead to over-concentration of factors of production in the industry, an economic approach to regulation would limit the extent of effort in a fishery by restrictingaccess to the stock. From a national as well as an international perspective,a sound management program would combine biological and economic objectives, and would seek to produce the greakst net economic return where politically feasible. Based on this analysis, a second best objective would be the maintenance of maximum sustainable yield. Fundamental to the problem of management is the establishment of clear responsibility for fisheries management Lothnow and in the future. Assignment of property rights is vumplicated by fact that living resources of the ocean are geogr,ohically mobil.nd are part of a total ecosystem of the oceans. The cstablishm..of 200- mile national fishing zones will not be sufhcien c if oes not stay within that area throughout its entire life ,Jycle. Moreover, even where species are stationary, they are dependent upon a total ocean ecosystem which transcends the limits of any zone. A coastal species may feed on another species that migrates beyond the zone.

139 144 Similarly, environmental problems are easily transferred from one zone to another. The division of the oceans into coastal state fishery zones with international areas beyond will therefore be inadequate to meet the needs of rational fisheries management for many fishing stocks in the absence of strong and effective international and regional environmental and resource regimes. In the course of determining property rights in fisheries, a number of difficult political problems must be addressed. If coastal state fishery zones become the norm, what types of rights will be enjoyed by other statesby land-locked states, by other states of a region, or by states traditionally fishing an area? The allocation of access rights should be determined within the scope of a biologically and economically sound management regime. It is important that the extension of fishing limits be designed to protect fishing stocks and provide a means of limiting effortnot just to protectlocal fishermen from more efficient foreign fishing. Important questions must also be confronted as to how state action can be harmonized with regional and international fisheries organizations to achieve a satisfactory fisheries regime.

Feasible Modes of Action From the U.S. point of view there are several modes of action which it, or for that matter other states, may employ to pursue its national interest in fisheries. These modes include: national action; unilateral moves; bilateral negotiations; regional or multilateral cooperative approaches! and global international activities. Each of these means can and probably will be employed whether a treaty is or is not agreed upon at the Law of the Sea Conference. National action includes those measures which are primarily domestic in orientation and which would be least a ffected by and have the least effect upon the international situation. Even national action, however, will depend for its feasibility in some cases on external events. National actions pertaining to fishing off the United States might include the development of effective management schemes within areas of U.S. fishing jurisdiction, the improvement of the effectiveness of the National Marine Fisheries Service as a management agency, or the improvement of Coast Guard enforcement capabilities. Such activities which pertain to domesCc jurisffict ion would inevitably be affected by the degree of international acceptability that is accorded to a fisheries regime. If a regime is Agri-A upon at UNCLOS III, then the adherence of most or allst mes to the cegime would facilitate management and enfurce tricot of repilations within areas of jurisdiction. Indeed, where appropi managerial responsibilities and enforcement 14o 140 costs could be shared between the United States andother states wishing to fish within areas of U.S. nationaljurisdiction. With regard to U.S. distant water fishing, thescope for national action is all the more important. National action could include reimbursing U.S. vessels for finesor licenses related to fishing in areas claimed by other nations. This would prove particularly difficult if the United Stateswere to require licenses for foreign fishing in a U.S. zone. It could alsoprove to be an extremely costly course of action. If there is no treaty or if there isa treaty that results in a multiplicity of jurisdictional claims,the United States would probably find itself reimbursinga larger proportion of fines than licensing fees. Moreover, suchan approach might encourage other nations to subsidize their fishing vesselsoperating within a U.S. national zone. Another form of nationalaction with foreign policy consequences that approximate unilateralaction is the restriction of imports from countries that harassor arrest U.S. vessels or for other reasons. The frequencyof such incidents and the need for such import restrictions will be directlyaffected by whether there is or is not an internationally agreedfishing regime emanating from the Law of the Sea Conference. Unilateral actions include actions with directinternational political consequences. Like national actions, unilateralactions will vary depending upon whether there isor is not an acceptable law of the sea treaty and upon how long it would taketo agree on a treaty. Unilateral action differs from national actionin its focus. It is specifically directed at other nations andas such is more clearly a matter of foreign policy. With regard to coastal fishing,U.S. unilateral action could beone of two types, depending upon the treaty outcome. If an acceptable treaty resulted from theLawof the Sea Conference, the United States could issue regulationsor enact legislation to implement its provisions visa vis other governments. If there is no treaty or if the treaty is unacceptableto theU.S. either in whole or as regards fisheries, the UnitedStates could act unilaterally via legislation or executive decreeto determine a fisheries regime off its own coasts. A variationon this second form of unilateral action would be if the UnitedStates proceeded to legislate a fisheries regime suchas a 200-mile fishing zone even before the Conference concluded. If the United States were to act before the end ofthe Conference or in opposition to a treatyitfound unacceptable,it would encounter greater difficulties in enforcinga coastal zone management scheme on other nations in an international atmosphereof some resentment. This, of course, would vary according to the extent of positive inducximents included in thelegislation. The 146 141 approach would, however, adversely affect relations with Japan and the Soviet Union. If no treaty results there will still be enforcement problems, although presumably less hostility at a U.S. action taken in an international vacuum.5 And finaliy, if U.S. unilateral action consisted merely of regulations and legislation to implement a treaty, it would encounter the fewest difficulties in enforcement. Not only would enforcement vis a vis other nations be facilitated, but also vis a vis U.S. coastal fishermen. An international treaty providing for coastal state management of fisheries in extended offshore zones would simply add weight to the argument for Federal management and regulation of offshore fisheries. Unilateral action with regard to U.S. distant water fishing is more problematic than that taken in coastal areas. Itwould have to be based on a U.S. intent to carry out distant water fishing in a manner consistent with the U.S. view of applicableinternational law. It might include naval escort of U.S. fishing vessels and a resort to force where necessary. If there were a law of the sea treaty and if the U.S. view of its fishing rights were consistent with that treaty, then such unilateral enforcement actions against a non- complying state would have a measure of international acceptability.lf,however, there were no treaty to back up the U.S. interpretation of its fishing rights off other shoreS, resort to escorts and the use offorce would tend to engender a degree of international hostility. On the other hand, if such enforcement action were agreed upon and were undertaken by a number of like- minded states, it could be viewed as setting the parameters of customary international law. Of course, in the event the' a U.S. action were taken alone and in opposition to an international law of the sea treaty, it would meet the greatest resistance. Bilateral fishing relations will continue to be an important mode of action with or without a law of the sea treaty. If a treaty results, however, the ease with which the U.S. pursues its interests through bilateral negotiation will depend very directly on the content of that treaty. In the case of a treaty unacceptable to the U.S., the United States would encounter major difficulties negotiating bilaterally with nations that supported the treaty. Those in agreement with the treaty provisions would have the weightof treaty law behind them. Of course, the reverse would hold aswell. Favorable treaty provisions would facilitate achievement of the U.S. positioninbilateral negotiations. This is particularly important in pursuing distant water and anadromous fishing interests. Although a satisfactory treaty would ease negotiations with regard to a 200-mile zone, the United States necessarily enjoys

142 more leverage in its own offshore areas than in areas off the coasts of others. St ill, the enforcement of bilaterally negotiated quotas and similar management measures can only be made easier if it is backed by international sentiment reflected in a treaty. In addition to inter-governmental bilateral relations, distant water segments of the fishing community might pursue private bilateral arrangements with other countries. Where a government seeks assistance with regard to fisheries research in improving its fishing capability or simply in fully utilizing offshore fisheries, it might develop the appropriate bilateral arrangements with U.S. distant water fishermen. These could range from special licensing arrangements through joint ventures to incorporation in the host country. Regional fisheries commissions have been in existence for some time. Bodies such asthe International Commission for the Northwest Atlantic Fisheries (ICNAF) establish gear and vessel restrictions, quotas, closedareas, closed seasons and other regulations. The international fisheries commissions have generally adopted regulations only when decline in a stock becomes apparent. Their goal has been biologicalnamely to conserve stocksand biological assessment and analysis have been important aspects of their work. These organizations rely on voluntary national compliance in reporting and in staying within assigned quota limits. The lack of a capability to enforce their regulations has been a primary weakness of regional organizations. Another problem of regional organizations is the failure to receive up-to- date scientific data upon which to base advice and regulations. Despite their weaknesses, regional arrar.gements could continue to serve a useful purpose in the aftermath of the Law of the Sea Conference. If no treaty is agreed upon, they will be a particularly important means to secure international cooperation where coastal zones do not coincide with the range of a stock, or where nations have traditionally fished the waters of other states. If a treaty is agreed upon, and particularlyifit extends national fishing jurisdiction to 200 miles, the rule of regional organizations may be significantly altered depending on the amount of competence vested in the coastal state. If the coastal state is granted the authorityto determine the maximum sustainable yield and relevant economic and environmental factors, as well as to allocate quotas, the role of regional organizations would be strictly advisory. In addition to compilation and interpretation of scientific data, however, a treaty might allow scope for a regional organization to play a significant regulatory role. With regard to highly migra Cory species or in semi-enclosed seas and areas where

1 43 148 fisheries cannot be divided into discrete coastal state zones, regional management organizations will be imperative for rational management of stocks. At the global international level most regional fisheries councils and commissions operate under the Foodand Agriculture Organization of the UN (FAO). Pending the outcome of the Law of the Sea Conference, FAO has been relatively inactive. A law of the sea treaty c:ould, of course, substantially alter the role of such an organization as well as the role of its regional subgroups. The Conference has not directly addressed the function of an inter- nationalfisheries organization. Clearly the present scientific advisory function could be improved through increased financial and staff support. Moreover, FAO might be granted international standard setting authority comparable to that enjoyed by the Intergovernmental Maritime Consultative Organization with regard to international shipping. Whatever its future authority, the data gathering functions should be closely coordinated with the workoftheIntergovernmental Oceanographic Commission relating to fisheries research. At the international level, perhaps the most importPnt activity with regard to fisheries is the present UN Conference on the Law of the Sea. In that forum, states have elaborated their positions,come to understand the positions of others and tried to reconcile the differences between them. The task of UNCLOS III has been to determine a legal regime foi the oceans which deals, among other things, withfisheries,Itisunderstandable, therefore, that international and regional organizations as well as coastal and distant water fishing states attach great importance to the results of the law of the sea negotiations.

Alternative Treaty Outcomes The policy options confronting the United States can be divided according to alternative treaty outcomes: (1) no treaty, (2) treaty takes too long, (3) treaty produced is unacceptable, (4) acceptable treatyis produced. Each situation will produce a different international climate as well as greater or lesser degrees of support for the U.S. position. If no treaty results, the present international situation of conflicting jurisdictional claims will becomemore confused as increasing numbers of states extend offshore jurisdiction for a variety of purposes. The United States will have to consider carefullyits national, unilateral and regional or international fisheries policies in terms of (1) the effect they will haveon other 149 144 nations, and (2) the difficulty of implementing them. A unilaterally declared fisheries zone, for example, should be established only with great care. It may be designedas a model for other coastal states with carefully drawn rights for distantwater fishing interests. It could be designed to complement regional qnd international cooperative approaches and, insofaras possible, the U.S. might proceed multilaterally. That is, the United States could work closely with like-minded states in developing coastalzone legislation and act in concert with these states. In thecourse of the LOS negotiations, the views of states have been sufficiently clarified to facilitate the task of determining states with which such a cooperative appr h might be undertaken. Bilateral arrangements would be complexina no-treaty situation. Initially, distant water and coastal interests would tend to enjoy a certain parity but customary law would quickly evolve doubtless in the direction of 200-mile coastalzones. From the point of view of U.S. distant water interests, there would be little international legal protection in this situation. Bilateral leverage would have to be obtained from non-fisheriesareas. Of course this situation would be improved where U.S. coastal legislation protected distant water interests and was supported multilaterally.If the United States were to play a formative role in fhe development of customary law, it would have to consider limited enforcement activitiespreferablyinconjunction with like- minded states.

Regional and multilateral efforts would play the greatest role ina no-treatysituationifrationally calculated management approaches are to be achieved and customary law isto develop satisfactorily. Management would be oriented toward ecological systems of fish and would be considered in conjunction with environmental measures which have similar consequences affecting areas beyond arbitrarily drawnzones. U.S. options where negotiation of a treaty stretched intoan indefinite future differ from those wherea conference produces no treaty. As negotiations continue, domesticpressure for the extension of fisheries jurisdiction to 200 miles will mount. Indeed, action may be taken in this direction before the March 1976 session of the Conference. A number of countriesare waiting for the United States to move, before taking such action themselves. Their claims may not, however, resemble a U.S. action. The reason that countries are waiting for the United States tomove first is that an extension of jurisdiction to 200 miles will generatea negative reaction on the part of land-locked and geographically disadvan- 130 145 taged states and will constitute a direct challenge to the decisionmaking role of the Law of the Sea Conference. If the U.S. acts to anticipate a Conference result, the United States will bear the burden of accusations that she is attempting to destroy the Conference. Other nations can then safely move to enact their own preferred measures. The option to proceed unilaterally if agreement on a treaty is delayed would seem to have serious disadvantages. In the first instance, it would engender a generally negative response as an act destructive of the Conference. In the second place, it would lead to specific unilateral responses which, quite different from the U.S. action, would jeopardize U.S distant water fishing interests. In the third place, the response of other countries might prove restrictive of and detrimental to other interests the United States is pursuing in the oceans. In the final instance, the U.S. ability to enforce its action would be more difficult in an environment of international hostility or non-compliance. Even worse from the U.S. viewpoint than no treaty or a treaty that is too long in the making would be a treaty outcome that is unacceptable to the U.S., in whole or in part. Although a treaty might be voted by as few as seventy-one nations (a majority of the 141 nations participating in the Conference) the fact that it would be a treaty resulting from a major international conference would give it substantial weight. While it is improbable that a totally unacceptable treaty would be voted over the opposition of an quential minority, it is likely that portions of the treaty would be cceptable to the United States. In that situation, insofar as the .acceptable features include fisheries, the United States has the option of submitting reservations to those portions with which it does not agree. If reservations are acceptable and widely submitted, this course of action would not lead to a particularly negative international response. Of course reservations would not resolve the difficulties that the United States would have in pursuing its policies vis a vis other nations that subscribe to the portion of the treaty rejected by the United States. Efforts to pursue U.S. interests bilaterally, multilaterally or internationally would be most seriously disadvantaged in the situation of a treaty unacceptable to the United States. Certainly the optimum situation from the U. S. point of view is one in which acceptable treaty provisions, on fisheries as on other issues, would be widely agreed upon. If the Geneva text is any indication, the likelihood of this outcome is small. Every effort should of course be made to improve the single negotiating text by establishing provisions that would facilitate management of entire

146 151 stocks or ecological systems of fish. Thus specific powers and responsibilities might be spelled out for regional and international organizations. The text should encourage the pursuit of economic efficiency in fisheries management as well as provide for biological goals of conservation. Although the United States may not be successful in pushinga LOS Conference to adopt management goals for fisheries, that does not rule out the longer term possibilities A treaty similar to the Geneva text will lead to practices xill quickly run into difficulty. The United States %, a relatively better position than most countries to k,.e national management practices within zones undt- u,ive control. Certainly the United States will have to work int ,00perative arrangements with her neighbors where fishery stocks range beyond the U.S. zone. Bu t these problems would be minor compared to those that will be encountered by states bordering areas such as the Caribbean or the North Sea. The failure of a zonal approachto provide for sound management in similar situations should lead to a general rethinking of a treaty based on 200-mile zones. As overfishing or inefficient practices become wort,.. states may be more amenable to adopting regional and international measures and pursuing economic and biological management goals. Until this happens, the United States will want to pursue sound management practices within its own areas of jurisdiction which may hopefully set a useful example for a subsequent revision of an international regime for fisheries. To accomplish this, the Federal Government would have to exercise its authority to regulate interstate fishing throughout the zone. A realistic means for limiting entry to fisheries would have to be developed. Rather than requiring inefficient practices and restrictions on gear,the government would have to license boats for individual quotas or for the right to fish certain areas. Such management priorities as well as improved enforcement procedures must be adopted in conjunction with any extension of U.S. fisheries jurisdiction whether that comes about unilaterally or by means of a widely agreed international treaty.

NOTES U.S. Department of Commerce. National Oceanic and Atmospheric Administra- tion, National Marine Fisheries Service, Fisheries of the United Stotes, 1974, Washington. D.C. 2 Address by Henry A. Kissinger before the American Bar Association Annual Convention. Montreal. August 11, 1975.

147 15 2 United Nations, Third Conference on the Law of tho Sea, United States of America: Watt Articles for a Chapter on the Economic Zone and thv Continental Shelf, ACONF.62.C.2.1.47 (1974). 4 An informal negotiating group composed of between thirty and forty member states chaired by Norwegiaq representative fens Evensem 5 In str-h a situation itwould be particularly important to try to effect management scheme that woubt serve as an example for other nations.

153

148 CHAPTER 7.

MINERAL RESOURCES

Introduction

Of all U.S. interests in the ocean, perhaps the least ambiguous has been the desire to gain access to ocean minerals. The oil and natural gas deposits off the shores of the continental United States and Alaska are the only promising new sourc k. of hydrocarbon resources available to the United States in the near term. The manganese nodules of the deep seabed may one day supply vast quantities or -a,pper, nickel, cobalt and manganese to our imply t dependent mor o.-ny. The last 30 years have seen a wide prolife tion of claims to extended coastal state jurisdiction over the oceans. At the heart of most of these claims has been the desire to expand national jurisdiction to ensure access to ocean resources. The task of unscrambling these claims has fallen on the Third UN Conference on the Law of the Sea (UNCLOS III). The resource regimes that will govern the exploitation ofocean hydrocarbons and deep seabed minerals differ according to the location of the resources. Most ocean hydrocarbons are locatedon continental shelves, and the 'agreement on an extendedzone of coastal state jurisdiction which seems virtually assured at UNCLOS III will put most oil and gas under a coastal state regime. In the United States, this management regime is subsumed under the rubric of outer continental shelf policy and is itselfa complex series of domestic issues which cannot be treated here. The minerals of the deep seabed, on the other hand, are more likely to be mined under an international regime. The specific form of this international regime is still the subject of considerable controversy between developed and developing countries. This chapter will deal with these emerging regimes and U.S. interests and options at UNCLOS and elsewhere.

Section I. Oil Interests and the Law of the Sea Conference The Early Shelf Debate Petroleum companies and their supporters were early and active

149 15.1 participants in the debate to establish an outer limit to coastal state jurisdiction. From the beginning, their statements indicate an explicit preference for coastal state control over their operations as opposed to international control. Their position carried the implicit assumption that satisfactory agreements could be struck bilateral- ljr between oil companies and other coastal states. The United States.isgenerally credited with unilaterally adopting the first important extension of ocean resource jurisdiction. President Truman's proclamation of September 1945 and the accompanying press release claimed that mineral resources of the continental shelf out to a depth of 100 fathoms (600 feet or roughly 200 meters) belonged to this nation, and led to a series of similar claimsand some not so similarby other coastal states. The most extravagant were those of the west coast Latin American states which claimed 200-mile territorial seas, in part to compensate for the lack of a broad continental shelf. The first two Law of the Sea C..nferences in 1958 and 1960 did little to settle the question of the outer limits of coastal state jurisdiction. Whereas a large percentage of states in attendance favored the adoption of a 12-mile territorial sea, no agreement had been reached by the signing of the Convention on the Territorial Sea. States' rights to mineral resources on and below the surface of the continental shelf were recognized in a second convention, and the 200-meter isobath was chosen as a guide. It was not made an absolute limit, however. According to ArticleIof the 1958 Convention on the Continental Shelf, a coastal state's jurisdiction over mineral resources extends "to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources..."1 The "flexible" outer boundary of coastal state jurisdiction was generally deemed to be onlyof academic significance because there were then no economically recoverable resources beyond that depth. Although exploratory wells had already been drilled to much greater depths, the costs were such as to make recovery unprofitable beyond 100 meters. The calculations of the delegates at UNCLOS I and Il proved to be shortsighted. Few foresaw the development of a commercial interest in mining of manganese nodules from the deep seabed or the technological innovations and increasing energy appetites that would render the 1958 limit inadequate. A short 9 years later, the technological advances that wouid enable man to exploit the resources of the deepest depths of the ocean were detailed before the UN by Ambassador Arvid Pardo, 15 .3.- 150 the Permanent Representative of Malta. In August 1967 he asked that the subject of the seabed, its delimitation, and its uses be added to the agenda of the General Assembly. The basic tenet of the Maltese proposal %Ads that the resources of the seabed beyond national jurisdiction were the "common heritage of mankind" and that some international regime should be agreed upon to oversee their exploitation. The proposal also envisioned a freezing of national claims to and a demilitarization of the seabed. While U.S. Ambassador to the UN Arthur Goldberg warmly welcomed the initiative of Malta, other U.S. spokesmen were less than enthusiastic over the proposal. Congressional reaction was prompt and severe. More than 20 different bills appeared in the House and Senate all objecting to granting control over seabed resources ta an international authority.2 The position of the U.S. administration was relatively slow to evolve.jFollowing months of debate within the administration, with the Departments of Defense and State pushing for a narrow area of national jurischction and Interior and Commerce advocating a wide area, the decision was made at the highest level to opt for the narrow shelf plan. On May 23. 1970 President Nixon released a statement on the boundary of the continental shelf and the U.S. proposal on the structure of the seabed reginw. The United States proposed thatall nations renounce claims to the seabed beyond the 200-meter isobath, and that the resources beyond that depth be considered the common heritage of mankind. The President's policy was encased within formal treaty language by an informal administration task force which worked all summer to prepare a U.S. draft to present to the UN Seabed Committee meeting in August 1970. Th- draft's most important feature from the standpoint of ocean nu.. ral resource ownership was the proposal for the establishment of an area beyond 200 meters called the "trusteeship zone." In this band between national and international jurisdiction, the coastal state would have had preferentialrights with theobligationtoturn overtothe international seabed authority one-half to two-thirds of resource revenues. The U.S. draft, while seeming very generous, was not warmly received. Many developing countries found the title given to this intermediate zone distasteful and the plan was attacked as a U.S. plot to dominate the seabeds. Nationally, too, the U.S. drafters carne under' heavy criticism for relinquishing claim to valuable seabed real estate. Chief among their critics were the oil companies. The major oil companiv, ,their lobby group (the American 156 151 Petroleum Institute),their quasi-official government advisory group (the National Petroleum Council), and the Department of the Interior, had all fought hard to win a presidential decision in favor of a broad band of coastal state jurisdiction for resource purposes. The National Petroleum Council was the most outspoken representative for oil interests. In a 1971 publication, they urged theU.S. Government to assert jurisdiction over the resources of the entire submerged portion of the continent, a distance well beyond the 200- meter isobath being pursued by the narrow shelf advocates: It is the carefully considered judgment of the NPC that the August 3 Draft Treaty does not provide the necessary assuranceof effective national jurisdiction over the mineral resources of the submerged continental margin of the United States and to which itisrightfully en- titled.. .Any treatywhich fails to assure effective national jurisdiction over the entire seabed pertaining to the U.S. would be placing in jeopardy a vital national interest of this country.4

The interests of the petroleum companies in the resources of the outer continen tal shelf had first become apparent in 1967 with the advent of new drilling technologies that promised to make exploitation economical at greater depths. New estimates by geologists that all significant reserves of oil would be located on the continental plateau above the deep ocean floor, and the radical procedures embodied in the Malta proposal which threatened to hand over the rights to the international community were two factors that increased oil company interest in the deeper shelf. Petroleum spokesmen supported their claim to the edge of the margin with carefully drafted legal arguments, and used the threat to national security as further justification. According to the Department of the Interior,oil company representatives, the National Petroleum Council (NPC), and the American Petroleum Institute, the flexible outer boundary of the continental shelf (as defined in the 1958 Convention on the Continental Shelf) implied coastal state jurisdiction beyond 200 meters if the exploitability and adjacency tests of the convention were satisfied. The argument was supported by a discussion of the importance of ocean hydrocarbons to national security and the risk of dependence on foreign sources of oil. Spokesmen for the petroleum interests were not unaware of the fact that 94 percent of all offshore oil was located off foreign shores (a point raised by those interested in convincing oil people that a narrow shelf regime would be more to their liking), but preferred a regime in which they would deal

152 1 5 'I bilaterallywithforeigncountries,ratherthanwith a' "monopolistic" international authority. By 1970, satisfactory bilateral arrangements had become harder to conclude following the early successes of OPEC in raising taxes of the oil companies. Oil interests began to realize the benefits of treaty guarantees to ensure freedom of shipping, security of investment and compulsory dispute settlement. With this realization came a willingness to work more closely with the Department of State toward an international treaty. The oil companies had a somewhat unlikely ally in their struggle within the Interagency Task Force (established by the W hite House to work out departmental differences and coordinate a U.S. law of the sea policy ).In the late 60's, the prospective ocean mining companies shared the oil companies' fears of a monopolistic international authority that would jeopardize their interests. They witnessed the willingness of the Department of Defense to tradeoff ocean oil resources to insure maximum mobility for the navy, and feared that hard minerals might suffer the same fate. Later, however, oil and manganese nodule mining interests diverged somewhat when the miners began to fear that the hard politicking of the oil companies for a broad zone of national jurisdiction might jeopardize an -international seabed agreement. As the different mineral interests began to see their future as tied to different resources regimes, the alliance quickly dissipated. The internationalists mark this period immediately following the May 23, 1970 presidential statement and the tabling of the U.S. Draft Treaty as the golden age of U.S. ocean policy. In the fiveyears since the president's call for a renunciation of national claims beyond 200 meters, however, the U.S. position has swung toward acceptance of wider coastal state jurisdiction and away from the narrow shelf concept for which the Department of Defense had pushed so lard, While other coastal states have beenmore strident in their d-,mands for coastal state sovereignty over continental shelf re.;riirs, tbt: United States itself has much to gain from expanded LOCtal state jurisdiction. Yet it has been slow to accept the 200-mile economic zone and its agreement on this issue remains contingent upon (1) satisfactory definition of rights and responsibilities within the zone, (2) a 12-mile territorial sea, and (3) the adoption of a regime of guaranteed passage through straitsthe irreducible demand of defense and shipping interests. An expanded area of coastal state resource jurisdiction appears to be one inevitable result of the law of the sea process. The only questionable factors remaining a:e the extent of seaward limit and

153 158 the rights and duties of states within the "coastal economic zone." At the Geneva session of UNCLOS III,there was near total agreement that the limits of the zone would extend to at least 200 miles. Some states with broad continental margins remain hopeful of gaining jurisdiction to the edge of the margin.6 It is unclear to what degree oil company discontent with the 1970 Draft Treaty led to the evolution of the U.S. position on ownership of continental shelf resources. The recent U.S. experiences with OPEC, which provided a vivid demonstration of American dependence on oil and the dangers of dependence on foreign sources for vital supplies, probably had much to do with the change in thc U.S. position at the Law of the Sea Conference.7What seems certain is that there will be a considerable extension of coastal state jurisdiction over resources of the continental shelf which will bring the overwhelming majority of potentialoil reserves under a national regime of exploitation, but will leave the manganese nodules of the deep seabed within the international area, under a regime yet to be constructed. Most recently, petroleum interests have presented a new proposal for a boundary formula which combines a boundary based on geomorphic features and one capable of being denoted in terms of latitude and longitude. The system would employ the base of the continental (or insular) slope as a starting point. From the base of the slope a boundary zone of "reasonable" distance could be adopted to enable "the eventual designation of a precise, definitive boundary by the coastal state itself, within internationally agreed limits, by means of simple straight lines within the boundary zone, connecting a minimum number of points fixed by coordinates of latitude and longitude.8 The suggestion seems deliberately vague on the width of this "boundary zone," but the National Petroleum Council report states that a zone of less than 100 km (fifty-four nautical miles) would be impracticable. Elsewhere in the NPC report, the suggestion is made that a boundary zone of 300 km (162 nautical miles) would give states with narrow margins an interest in the economic zone.9 The strident tone of earlier NPC proposals was gone from this most recent proposal and the oil concern with jurisdictional boundaries is increasingly balanced by greater concern with the movement of oil at sea.

Energy Needs and the Geneva Text A wide range of oil interests are still the subject of negotiations at the Law of the Sea Conference. These interests include unhampered shipping through straits and coastal zones, the avoidance of 15 9 1 54 arbitrary pollution standards, and guarantees of the security of investments.Inthis instance,the U.S. negotiating position coincides with oil interests and each concern above was officially expressed in Caracas and Geneva. Certainly the most important goal of petroleum interests has been the establishment of national control over continental shelf oil and gas. (Petroleum interests in shipping and pollution standards are dealt with elsewhere in this study.) As mentioned above, this seems to be one virtually assured outcome of the law of the sea negotiating process. Section II of the single negotiating text (SNT) produced at the Geneva session grants coastal states "exclusive jurisdiction" over the continental shelf and its resources. The shelf, according to the text's definition, extends "to the outer edge of the continental margin, or to a distance of 200 nautical miles" whichever is further.

A revenue sharing plan for resources of the shelf is embodied in Article 69 of the SNT which would obligate coastal states to pay an unspecified portion of the value of production from the shelf in the area beyond 200 miles where the margin exceeds that distance. This is the only important restriction to total coastal state sovereignty over resources of the margin, and it will only affect a score of states with margins beyond 200 miles. Since for the United States and the world as a whole, 98-100 percent of ocean petroleum is located between shore and the edge of the margin, virtually all offshore oil will fall under national regimes if the text's formula is adopted. Between 6 and 22 percent of U.S. offshore oil lies beyond 200 nautical miles and would be subject to revenue sharing. While unenthusiastic about the revenue sharing provisions in the negotiating text, oil representatives have expressed overall satisfaction with the text. The one serious omission from their point of view is a provision reaffirming security of investment. The companies feat that some Third World countries will seek financial and technical assistance in offshore exploration and later demand a greater share of the profits or even resort to nationalization. In recent publications and at the Geneva session itself, petroleum interests fought for inclusion of binding provisions on parties to live up to their contracts. They attempted to leave the impression that without assurances, financial and technical resources would not be available in risky areas. Neither the problem nor the threat to withhold their -resources were taken seriously be developing country delegates, and it remains unlikely that many developing countries will be persuaded of their importance.

155 160 Options for the U.S. Because current trends at UNCLOS seem almost certain to confirm U.S. ii.torests in continental shelf petroleum, a discussion of U.S. policy ,)p; 'oils and their impacts will be limited to two alternative circir:ances under which the U.S. might consider other courses of cion. U.S. acceptance of a broad zone of coastal stvte juri.:d.ction has always been contingent upon the three provisions mzroned abovea 12-mile sea, guaranteed passage through straits, ?.nd satisfactory definition of the economiczone. A 12-mil0 territorio: sea appears certain to be embodied in any final agreement. if satisfaf:tory arrangements on the other two issues cannot be reached or ;f the extended zone of jurisdiction is part of a comprehensive treaty which the U.S. cannot accept for other reasons, the U.S. Government would face a series of options. These options ran,-.1e from the acceptance of a more limited treaty covering only extended coustal state economic and territorial jurisdiction, to a uni;aterai U.S. claim over resources out to the edge of the margin. It may not prove to be an all-or-nothing choice. If the U.S. found that it could not accept a complete UNCLOS treatybecause ofan unacceptable seabed arrangement for nodule mining, for instance it cr:uld accept those provisions with which it agreed by signing the treaty and placing reservations against unacceptable provisions. A second option would be for the United States to propose that the package be broken down into more limited treaties so that the United States and like-minded states could accept those they favored and reject those not clearly in their interests. Since there is a greater consensus on the idea of an expanded zone of jurisdiction (although not on its characteristics) than on any other UNCLOS issue, the United States should find a large number of states willing to support this approach, particularly if acceptable compromises are not found on other issues at UNCLOS. While the United States would have the option of declaring unilaterallythatit had exclusive rights to resources on the continental shelf, the consequences of such a move are potentially serious. Not only would a unilateral U.S. declaration earn ill will from other states as action in contravention of the continuing international negotiating efforts, but such action would seemingly contradict the U.S. intrepretation of the 1958 Convention on the Continental Shelf. In the U.S. view, this convention gives coastal states clear rights to the resources of the shelf out to 200 meters or beyond to the limits of exploitability. Additionally, although the technology is present to drill beyond the 200-meter depth, it ismore profitable to harvest oit supplies in shallower water, and it will be many years before there is much exploitation at greater depths. 161 156 Oil company fears of breach of contract by host countries remain a valid concern. However, in the current international political climate in which the multinational corporations operate, treaty provisions holding host countries to contractual obligations show little hope of being accepted or upheld by more thana few developed countries. Any negotiating capital investedon this issue could well be wasted. This does not mean that the major oil companies must willingly submit to contract renegotiations and nationalization of investments. The companies retain the right to deny capital and technology for offshore operations to areas of the world where security of investment seems tenuous. Another option open to the companies is to make technology available in the form of turn-key operations rather than the long term participatory arrangements which are more inviting targetsfor host country action. Additional security of investment could be provided through an extension offoreign investment insurance provided by the Overseas Private Investment Corporation (OPIC),aquasi- governmental organization which backs U.S. foreign investors against losses. OPIC insurance guidelines are currently limited to "tangible and removable assets"only a small partof the exploratory and development expenditures required in offshore operations. OPIC insurance is further restricted to investments onshore .or offshore within the territorial sea as recognized by the U.S. Department of State. If current UNCLOS trends result in the establishment of exclusive coastal state rights over continental shelf resources. OPIC coverage could be extended to apply out to the edge of the coastal economic zone. Considering the vulnerabili- tyof offshore production investmentstonationalization or renegotiation and the heavy expenditures required for research and equipment which are not tangible or removable, Congress or OPIC directors could consider broadening investment coverage to protect the interests of the oil companies more fully. In any event, efforts to protect U.S. oil company investments off foreign shores should not be extended beyond the protective measures offered to U.S. foreign investors generally, without special justification. Given the high probability that most continental shelf oil and natural gas will fall under a national regime acceptable to the United States, the attention of ocean policymakers and U.S. petroleum interests should focus on the domestic management scheme for offshore oil production. The current debate over U.S. outer continental shelf policy involves a complex interaction among concerns of coastal states over land development, fears of massive or chronic pollution, problems of estimatingtotal 16 2 1 57 resources and the value of individual tracts, and the desire for greater or less fedend control over offshore exploration. This isa vast subject area in itself and beyond the scope of this study, but it is important that the system be carefully examined and changed where necessary to establish a sound management system for U.S. offshore development.lu

Section II. The Seabed Mining Issue at UNCLOS Since Ambassador Pardo's speech before the General Assembly in 1967, there has been no major disagreement with the principle of an international area beyond national jurisdiction in the ocean. There remains considerablo..:isagreement,however, onthe meaning of the concept of mon heritage. The only minerals of current interest beyond the continental shelves of coastal statesare manganese nodulesthose potato sized lumps which lie strewn about the ocemi floor at depths of prom 12,000to 20,000 feet and which contain valuable quantities of nickel,copper, cobalt, manganese and other metals. Since all available data confirms that the economically attractive nodules lie beyond the edge of the margin and further than 200-nautical miles fromany coastal state, they clearly fall within the internationalarea and their exploitation may one day be overseen by an international regime. The debate over the degree of control exercised by an "international authority," as it has come to be called, has formed the most politically charged and, consequently, the most intractable issueat the Law of the Sea Conference. On the issue of the international authority, opinions split fairly cleanly along the developec country-developing country axis. Itis the developed countries (and principally the United States) which possess the technology to dredge the ocean depths and refine the nodules. They have sought rights ofaccess to, and security of tenure over, mining sites within the internationalarea. developed countries have attempted to limit thepowers of the authority as much as possible, but as yet have not indicateda willingness to undertake seabed mining without the sanction of the international community. Thu devt hi ping countries number 106 of the141 states that partif:ipate( in the 19; 3 session of the Law of the Sea Conferenceat Gene 4.ra. They have nb, shared the developed countries'sense of urgency. The notion that the resources of the international area are the ",:ommon heritage of mankind" (meaningcommon property) is a

158 183 firmly held belief in the developing world. Their goal is to establish an authority with broad powers to exploit the seabed directly, to oversee its development, to make an equitable distribution of revenues among developing countries, and to prevent injury to land-based procedures of the metals found in the manganese nodule. In recent years, this issue has become closely identified with developing country effortstoreverse the dependency relationship between developing and developed countries and the establishment of the "new international economic order." The negotiations have continuedforseveral years, with developing countries seeking a strong authority to protect the common heritage resources from unilateral exploitation, and developed countries seeking an agreement which would prove economically attractive to potential ocean miners and provide for a new and reliable source of minerals for domestic consumers. After three sessions of the Confuence, there appears to be little progress toward agreement between the major opponents. This history of the debate within Committee I of UNCLOS and the inability to find a compromise have raised questions as to the ability of states to resolve on a multilateral basis economic issues which affect their respective national interests, and questions as to how the United States should now proceed.

Unique Aspects of the Seabed Issue and UNCLOS Several aspects of the Law of the Sea Conference and the controversy over serbed mining contribute to making the seabed such a politically salient issue for both developing and developed states. The major factor is financial. The seabed, by most available predictions.contains quantitiesof minerals of great value. Formerly, these resources might well have gone to those states that first developed the technology required to obtain them. Today, however, developed countries find themselves in the unpleasant position of having to ask the developing states' permission to begin mining if they wish to mine with the sanction of the international community. Developing states, on the othcr hand, are delighted to find themselves with sufficient votr:s to grant title to the seabed resources to whomever they choose. International law is sufficiently vague on title of seabed 1'r:sources so th itit has been used convincingly to justify positions on both ends of the spectrum." Even so, developing states ar e mindful of their impotence to stop the developed countries from mining the seabed if they choose. To date, both sides must be credited with having followed relatively moderate courses of action, whatever the motivation.

159 164 A second aspect is that Committee I's task of establiFhinean internationally agreed system of seabed exploitation is ha:T.Ted by the lack of precedents for guidance. Seabed mineralsare the tirst to be accorded the status of international resources. The concept of an international resource developed because of the increasing trend away from acceptance of the res nullius doctrine to that of res communis. Developingtheactualmechanics, however,of granting some states accessto the common property while guaranteeing other states their share has proved difficult. The political nature that the debate has assumed has not made the problem any easier. The statei clamoring for access to seabedmanganese nodules are, lit and large, developed countries. Their primary motive is to gain accessto new sources of raw materials and allow their corporations, state or private, to turn a profit by raising the nodules, processing them and entering into competition with current land- based suppliers of the same minerals. No publicsource has stated with certainty that minerals from themanganese nodule can be competitivc with land-based minerals, but company officials feel that mineral consumers will willinglypay even a slightei higher price for seabed minerals because of the dependability of supply. Fears of international mineral cartelson the order of OPEC are played upon by would-be, miners in their efforts to convince domestic legislatures of the wisdom of their cause. As land7based producers gradually are forced to exploit pbeirer grades ofore, the- prices of the minerals to world consumers will rise and the general expectation is that seabed resources will be competitive soon if not immediately. An added argument is the balance of payments drain that the import of minerals from land-basedsources is causing. The United States currently imports 82 percent ofitsnickel anti manganese, 77 percent of its cobalt, and nearly 5 percent of its copper. In 1972, the cost of these mineral imports was S1.1 billion. The U.S. Treasury Department welcomes the prospect of nodule mining by U.S. companies as a means of lesseningour dependence on foreign mineral suppliers. Some officials hope that U.S. seabed miners might one day export those minerals which we import today. Land-based producers are less than enthusiastic about the prospect of seabed mining. They have pointed out that known mineral reserves of cobalt, copper, nickel and manganeseare sufficient to last through the end of this century or beyond at only slightly higher prices, with reserve estimates continually being revised upward as technology advances. Development of the seabed by multinational corporations and international consortia, 16;i 160 in the opinion of land-based producers, could lead to windfall profits for producers and only slightly lower prices to consumers, while current producers will face an uncertain future with the loss of their traditional export markets. The economic effect on land. based producers will be examined in greater detail below as it forms the core of the argument within Committee I and is a subject on which much has been said but little is really known. The fact that most hind-based producing countries of the metals in question are also developing countries serves to widen the developed- developing split on the seabed resource issue. The seabed issue at UNCLOS is novel in another respect. It has proven in retrospect to have been the first battlefield chosen by the developing countries of the Group of 7713 in their efforts to establish the, "new international economic order." The voting power of the Group of 77 is impressive within Committee I and the Conference as a whole. Yet there is a keen awareness on the part of this majority that they cannot affort to run rough-shod over the interests of those few countries with ocean mining technology if they hope to obtain their signatures on a law of the sea convention. There is a realization on both sides that developed countries could mine the seabed without international sanctionif the demands of the developing bloc proved excessive, and that a treaty without the adherence of the major nations would be of dubious value. The developed countries, for their part, realize that they have other important assets at stake in the Law of the Sea Conference which might be jeopardized by an insistence on going it alone. Unilateral action by ocean mining states in defiance of the wishes of the overwhelming majority of the world community would certainly !road to considerable ill will, and could also result in increased expropriations of foreign held assets. The decision by states with mining potential to seek an international solution demonstrates the high value they attach to the establishment of an orderly and stable system in which investments are secure, even though it might cost the developed states some loss of control over production when compared to a completely laissez fairy system. It is this fact above all others which keeps U.S. negotiators involved in Committee I discussions where they are hopelessly out- numbered. The final factor in the seabed issue at UNCLOS IIIis that Comittee Iis opeNiting under a time constraint. The United States Congress is, for the third year in a row, considering legislation to "authorize" U.S. companies to begin mining the deep seabed beyond national jurisdiction. As of October 1975, consideration of the Deep Seithed Fiord Minerals Act (S.713) had not yet progressed much 16 161 beyond the Committee on Interior and Insular Affairs in the Senate. Administration spokesmen have reportedly asked thebill's sponsor, Senator Metcalf, and other proponents for time to work out an internationally agreed solution to seabed mining. HistoriCal- ly, the bill, which has had strong ocean mining induFtry support, was envishmed as a more realistic approach than internd'ional solutions which were givenlittle chance of being adupted. Increasingly, the "Met ;elf bill" is beins consideredas an interim measure to grant U.S. seabed miner^ access in the current period but which would be superceded by a seabed cnvention if and when itis ratified by the required number of states The distinction between a national mining system, and an interim approach in the period before a treaty, is lost on the majority of the i.it..1rnationa: negotiators gathered at the Law of the Sea Conference. Most developing couniries consider the threat of adoption of the Metcalf approach to be oat-and-out pressure tactics. While they hisve heard administration spokesmen ask the Congress Li give negotiationsa chance, they have also heard the same spokesmen claim that the existence of the bill may prompt the Group of 77 to adopta more flexible position. The position of the developing bloc which forms the Group of77 is clear as to the initiation of seabed mining prior toa treaty. The so- called Moratorium Resolution (Res. 2574D) adopted in the General Assembly in 1969 by a vote of 62 to 18 with 28 abstentions, declared that pending the establishment in international regime for the area: states and persons, physical er juridu:al, are bound to refrain from all activities of exploitation of theresources of the area of the seabed and the ocean floor and the subsuil thereof beyond the limits of national jurisdiction. While GeneralAsset,: blyresolutions do not conferlegal responsibility, and the vote on this particular resolutionmay not provide adequate evidence of emerging international law, developing countries at the Conference feel that the resolution placesa moral responsibility on states ma to undertakeany seabed mining in the absence of a treaty.

According to published reports, an alternative plan to , Metcalf bill is being circulated within the administration by the Department of the Interior. The purpose of this bill, according toan Interior Department spokesman, is not to put additionalpressure on Committee I delegates, but to correct the mistakes of the Metcalf approach so that if the Conference fails toopen the seabed to exploitation, the United States will have other optionsopen to it. Whether or not the I lnited States will act unilaterally to give

162 16 mining firms access to seabed resources depends in large measure on the patience of Congress and the ability of U.S. negotiators to convince Congress that progress is being made toward an eventual international solution.

Review of the Negotiations Primarily because the 1958 and 1960 conventions dealing with the law of the sea failed to anticipate a commercial interest in mining the deep seabed, the issue of the extent of coastal state jurisdictionresurfaced once technological developments put seabed minerals within reach. By 1967, when the issue was raised at the UN it was clear that a revision of ocean rules was needed. The Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction, or the Seabed Committee, produced two resolutions in 1969 that were eventually accepted by the General Assembly. The "Moratorium Resolution," referred to above, put potential ocean miners on notice that the majority of the world community believed that ocean mining should await an international solution. A second resolution, passed by the General Assembly in 1970, called for an international conference for 1973 to consider the seabed question and other matters pertaining to the law of the sea which were not dealt with in the 1958 and 1960 conventions or were in need of revision. In 1970, the Seabed Committee work resulted in the Declaration of Principles which carried the Assembly without opposition and with only fourteen abstentions. The Declaration embodied the major points of the Malta proposal: (1) that the seabed beyond national jurisdiction and its resources were the "common heritage of mankind"; (2) that an international body be established to manage the area; and (3) that priority in the distribution of benefits of the seabed would be accorded to developing countries. In 1970, the Seabed Committee began its preparatory work for the Law of the Sea Conference. Most discussion focused on the limits of national jurisdiction that were to be expanded seaward and the rights and duties of states within that zone. Eleven proposals directed to the Seabed Commit tee between 1970 and 1972 related directly to the seabed and its regime. These proposals ran the gamut from complete discretion placed in the hands of states exploiting the seabed, to an all-powerful authority which would itself exploit the seabed on behalf of the international community. Although there is some newly noted flexibility in these extreme positions, the debate on the exploitation of the seabed has not advanced significantly. After a procedural session in New York in December 1973, the

163 168 Third UN Law of the Sea Conference convened in Caracas in the Summer of 1974. While little actual negotiation took place, the discussions focused on the two central issues before Committee I: (1) "who may exploit the area" and (2) the likely "economic effects of seabed exploitation" on (developing country) land-based mineral producers and what, if anything, to do aboul such effects. Neither issue was settled by the end of the Caracas session. At the Geneva session in Spring 1975, the Committee I delegates opted to circumvent these crucial issues at the beginning of the session, and to work out first a regime for exploitation that both sides could support. The two central issues will eventually need to be resolved.

The Economic Effects of Seabed Mining Much of the distance between positions within Committee I isa result of disagreement on the likely effects ofocean mineral production on land-based procedures of thesame minerals and how to deal with these effects. Since the countries that are currently suppliers of manganese, cobalt and copper are.largely developing countries, the economic effects issues have heightened the polarity between the positions of developed and developing countries. Following several weeks of discussionon .economic effects at Caracas there was little agreement on the facts andeven less on what to do about them.

A survey of the literatureon ocean mining reveals that the companies exploring the possibilities of seabedmining expect the nickel and copper in themanganese nodule to be the biggest revenue producers. The potential ocean miners claim that their projected yearly production of nickel andcopper from the seabed will not even amount to the yearly growthincrement caused by increasing demand. Consequently, theyargue, their production will not rob developing country land .basedproducers of their markets. Industry's argument lacks credibility, however.First, any production of minerals from the seabed willtend to hold down prices from what they might have been, therebydecreasing revenues of land-based producers. Second, the various minerals found in the manganese noduleare locked within it in proportions which vary considerably from theratio in which they are in demand in world markets. In other words,attempts to fulfill the demand growth increment for nickelor copper may indeed lead to an oversupply of cobalt and manganese. The table below shows this disproportion.

164 16 Table 7-1 Disproportion between Nodule Mineral Supply and World MineralDemand

Proportion of Quantities Metal Proportion in a Typical Nodule Demand in World Market Manganese 90.0% 56% Copper 4.5% 40% Nickel 4.6% 4% Cobalt 0.9% 0.15% 100.0% ca. 100%

The proportions of nickel in the noduleand in world demand are close to the same, but this isnot true for other minerals. If seabed production were geared to meet exactlythe demand growth in nickel in 1980, it would require onlyone seabed miner processing 3,000,000 tons of nodules to fill the nickel growthincrement. At the same time, he would produce more than sixtimes the demand growth increment of cobalt andone and a half times that of manganese.Theramificationsforland-basedcobaltand manganese producers are potentially serious. Developing countries supply nearly75 percent of the world's cobalt, nearly 40 percent of worldmanganese and copper and nearly 15 percent of the world's nickel.The table below shows major developing country producersof the metals in question together with their market share, andexport dependence.

1 65 Table 7-2 Major Developing Country Producers of Nodule Minerals

Tons produced Exports as % of Country (1971) % World Total total exports (1971)

Copper Zambia 718,000 10.78 94.6 Chile 790,000 11.87 78.3 Zaire 449,000 6.74 83.0 Peru 234,000 3.52 28.9 Philippines 229,000 3.44 15.6 Uganda 10.8

Manganese

Brazil 2,868,000 12.58 1.1 Gabon 2,059,000 9.03 21.2 India 1,961,000 8.60 1.0 Ghana 659,800 2.90 3.3 Zaire 427,000 1.87 1.6

Nickel

Cuba 40,000 5.66 2.1 Indonesia 29,7E2 4.22 5.9

Cobalt

Zaire 14,800 57.22 5.2 Zambia 2,293 8.86 0.6 Cuba 1,700 6.57 - - Morocco 1,078 4.17

Sources: 1. Minerals Yearbook 1971, U.S. Bureau of Mines, Vol. 1, Metals, Minerals and Fuels, 1971. 2. United Nations Secretariat Report A/AC.138/36. 3. Bollow. "Economic Effects of Deep Ocean Mineral Mining," National Technical Information Service, September 1971.

Formany of these countries, the export receipts from these minerals are the primary source of foreign exchange. Copper exports accounted for more than 75 percent of total exports for Chile, Zambia and Zaire, and are an important source of revenue for Peru, the Philippines, Uganda and a handful of other countries. Developing country dependence on mineral revenues from cobalt, nickel and manganese are less dramatic, but Indonesia derives 6 percent of its foreign exchange from nickel production. Gabon and Ghana derive 21 percent and3percentrespectively from manganese, and Zaire's cobalt exports amount to more than 5 percent of its foreign exchange income. Making accurate predictions of the "economic effects" of seabed mining requires good estimates of future mineral der,,,ind and seabed produc tion. From public statements of the future ocean

166 17 miners, a good deal is known about their immediate production plans. Two of the three U.S. firms who have made heavy investments in developing ocean mining technology, t he Kennecott consortium and the Summa Corporation," are each expected to process 3,000,000 tons of nodules per year to extract primarily copper, nickel, and cobalt. The third U.S. firm, Deepsea Ventures," plans to mine only 1,000,000 tons per year (dry weight) initially and is the only U.S. firm currently planning to extract manganese from the nodule in addition to copper, nickel and cobalt. Predictions of future demand for the minerals of the manganese nodule are more problematic. A slight difference in the assumed percentage rate of demand growth can make a large difference in projections for tons of minerals needed in future years and consequently in estimates of the degree of penetration by ocean minerals into existing markets. If, for instance, a 6 percent growth rate for copper demand is assumed as it is in a UN Secretariat report, world demand for copper in the year 2000 would be on the order of 55 million tons per year. If 3.4 percent is chosen, the low figure from U.S. Bureau of Mines projections, demand in the year 2000 would be only about 25 million tons. :n fact, existing estimates of future demand growth rates vary considerably among the various economic studies of the implications of seabed minerals for existing land producers of the same minerals. Some estimatesib make use of percentile ranges for growth estimates to correct for the inabilityto predict demand growth accurately, and lead to predictions of serious implications for land-bas-d producers of cobalt. rnangal:ev. and nickel. If in 10 yeiars (1U85) 5 firms are mining thy ,ea:,(11 at full capacity, they will market from 40 to 77 percent of the world's cobalt demnd, from 4 to 7 percent of manganese demand, and from 8 to 14 percent (..f nickel demand. Copper producers have less to fear since 5 firms extracting copper from nodules in 1985 could produce only 0.4 to 0.6 percent of world copper demand. Since one of the major hopes of developed countries is that ocean mining by their nationals will reduce costly expenditures for mineral imports, seabed productionill likely replace land productionfL cm developing countries for cobalt, nickel, and manganese,inless an agreement is reached within Committee I or by the international authority Used' to limit production of the ocean producers, or to hold ptices at an artifically high level. The appearance on world markets of additional supplies of cobalt,nickeland manganese from seabedmining operations can be expected to pit a downward pressure on prices. The amount of price decline is a function of ihe elasticity of demand

167 for these minerals and the amounts placed on the market. The combined effect of a loss of existing (or potential) markets and a fall in the price level brought about by seabed production promises to have serious adverse effects on foriegn exchange income ina number of developing countries unless seabed mining is regulated. Zaire and Zambia, and to a lesser extent Morocco and Cuba, would suffer losses of export income from cobalt. Gabon is high!y dependent on manganese export revenues. Ghana. Zaire, Bra-zit. Morocco and India would sustain losses from a combined pri;A. decrease and demand decrease in manganese. And a loss of nick: markets, combined with a price drop, will have effectson Cuba and Indonesia. The loss of even small proport ions of export income to fragile developing country economies poses a serious problem. Revenues from exports are a crucial ingredient in all development strategies as they are used to pay for the heavy import bill typically incurred by developing countries. The development and maintenance of healthy export industries has therefore been a top priority goal of most developing countries. In addition, unregulated seabed mining may result in a series of secondary effects on developing countries. Tile specific mining industries involved will be particularly hard hit with the possibility of increased unemployment and loss oftax revenue to the government.

U.S. Policy and the Law of the Sea Conference While there is a relatively small group of developingcountry mineral producers which will be injured by seabed mining unless steps are takento preventit,the overwhelming majority of countries, both developing and developed, are primarilyconsumers of these minerals, and could be expected to profit from le,...er mineral prices br'ought about by seabed mining. Despite this fact and the best efforts of (LS. negotiators to convince developing country consumers that unregulated seabed mining is in their economic interest, most of the developing bloc has in this instance accorded politil solidarity a higher value than economic gain. This trend is inc.' ifestEd within the Committee I discussions by the desire on the part of the Group of 77 to place control firmly in the hands of the authority. With a powerful authority, ruled bya majoritvoting system which favors the developing bloc, limits on ocean production or limitations to entry for new ocean miners could be Unposed to prevent injury to developing country producers. From the beginning, the United States and other potential seabed mining states have soughta weak authority. The U.S.S.R. {riginally envisioned a simh.; administrative structure which I 3 168 would du little more than serve as a claims registry office for the companies who will mine the seabed. The Group of 77 position,on the other hand, sets forth a comprehensive authority which would be empowered to set production limits, tooversee the transfer of technology to those without it, to sign contracts with prospective miners and which could itself undertake seabed production. As the debate has developed and revealed a strong majority in favor of the more comprehensive authority, the United States has begun to concentrate its efforts on ensuring a veto-proof policymaking role within the authority for itself or for like-mindedstates. The structure of the authority, if created, would probably resenthle other international organizations. It would havean assembly on which all states party to the convention would sit. Decisions of the assembly would be made on the principle ofone state, one vote. The executive functions of the authority would be held by the Council which would meetmore regularly to oversee the day-to-day operations of the authority. Most statessupport a system of seating on the council which recognizes the special interests of two groups and would give them weighted representation:the states who possess the capital and technologyto undertake S ea b ed mining and the states whichare land-based producers. There is still little agreement among major positionsas to the number of seats on the council, how they will be chosen and consequently, who will have control. An assessment of the progress at the Geneva session is difficult. On the surface it would appear that significantprogress was made. In the early weeks of the Conference, ;derewas general support within the "working group" of Committee Ito circumvent the problematic questions of who shall exploit the seabed and the economic implications arguments that dominated the discussions at Caracas. Instead, the working group attempted to formulate basic rules and regulations for one method of exploitation through joint venture arrangements between the international authority and private or state-owned companies. At mid-Conference, the Chairman of the Committee I working group, Christopher Pinto of Sri Lanka, combined 5 major proposals on the basic conditions of seabed exploitation into a single draft with the hope that discussion could then focuson that text. Neither the U.S. nor the Group of 77 accepted all the compromises embodied in the Pinto draft and serious discussionspn the conditions of exploitation broke down. Much of the rest oil the Geneva session was spent in lobbying the Chairman of the Committee I who, along with the other committee chairmen, had been asked by Conference President Amerasinghe to prepare single negotiating texts. Having 1 7 169 witnessed the fate of the Pinto draft which was torn apart by different groups, Amerasinghe made the decision to wait until the end of the Conference to distribute the single negotiating texts. While few states are yet officially on record concerning the single negotiating texts, the positions of the major participantsare predictable from the texts themselves. The Committee I text is drawn almost entirely from the Group of 77 position withvery few concessions to developed countries' or to compromises already hammered out within the working group. U.S. negotiators admit that there is little in the Committee I text that will appeal toan American audience, and that it is difficult tosee it as a basis for negotiation, The United States has had one overriding negotiating objective in CommitteeIof UNCLOS IIIthe establishment of an internationally agreed system of exploitation of the deep seabed that would give the technologically advanced U.S.ocean mining companies access to and security of tenure over areas of the seabed. Because of the U.S. technological lead and the availability of sufficient capital in the United States, the American position has reflected the assumption that U.S. companies would fare well under a system of free competition with foreign companies. The resultofthis assumption has been the decision to seek an international seabed mining agreement with a minimum of restrictions on entry, strong assurances of security of tenureover mining sites and reciprocal recognition of other states' claims. After years of talks on the seabed, it has become clear that the great majority of the international community prefers the establishment of a new international organization with broadpowers to control entry into seabed mining as well as production levels and mineral prices themselves. While U.S. negotiators have acquiesced in the movement to create an "international authority" to regulate seabed mining (over the objections of the prospective miners), they have sought to limit the powers of the authority particularly in regard to fixing prices and setting production limits. Additionally, the United States has sought to gain political control in the decisionmaking structure for states with interests similar to its own to ensure that the powers of the authority will continue to be limited. Salient provisions of the Committee I single negotiating text (SNT) are analyzed below, together with their probable impacts if formally adopted.

The Single Negotiating Text The text places control of the authority firmly in the hands of a

170 173 developing country majority. Although the proposed structure of the council of the authority recognizes the special interests of some states, developed states which possess the capital and technology are granted only 6 of 36 seats, plus those seats they will acquire through the geographic distribution of 24 additional seats. With important questions decided by a two-thirds-plus-one majority, and procedural questions on the basis of a simple majority, the structure is clearly weighkd against developed states and in favor of the majority view as expressed by the Group of 77: The SNT vests the power to assign rights to seabed minerals in the authority, and recognizes no other claims to the area. The "Enterprise System," whereby the adthorityitself conducts exploration and exploitation operations, has become an integral part of the proposal despite strong developed country objections. but the annex setting forth its Operating procedure and the rules under which it will function are yet to bo conceived. While the negotiatingtextoutlinesprocedures:crthe formation and operation of joint ventures between the authority and private or state firms, it seems probable that an authority dominated by the developing country majority would choose to exploit the seabed through the Enterprise Systcm. There only one real concession to developed countries who seek permission to mine the seabed through private or state companies. The draft provides (article 22) for the early identification of 10 economically viable mining sites for exploration by private or state companies in joint venture with the authority. From the tone of the rest of the document, however, this appears to be a token incentive, offered to the developed countries to keep their interest and to insure that the prospective ocean miners will continue to make the needed investments in technology. During June 1975 hearings before the National Ocean Policy Study of the Senate Commerce Committee. Marne A. Dubs, Kennecott's Ocean Mining Director, testified that .the [Group of] 77 are trying to buy Or! developed countries off by offering ten sites under a "joint venture" scheme toget things started. After that, they would presumably have acquired funds, technology and management from us so that we could be quickly and quietly removed from further seabed activity in the future. One hardly need do mon to show the unacceptability of this negotiated text! Sen-etary of State Kissinger's August 11, 1975 speech before the American Bar Association reaffirmed U.S. desires to begin mining the deep seabed. While his statement recognized the possibility of

171

1 '7 (i mining operations conducted by the international authority, the United States would support such operations only if national rights to exploit the seabed were preserved, and certain other criteria were fulfilled. The U.S. position remains seriously at odds with the Committee I single negotiating text. Options for the United States The following criteria will he used to evaluate possible U.S. actions on the seabed issue: 1. ability of the option to fulfill U.S. negotiating objectives 9. impact of the option on other U.S. goals 3.probability of its adoption in the appropriate forum UNCLOS, U.S. Congress or bilateral and multilateral arrangements 4. probability that the option will permit successful resolution of the issue 5. costs and benefits of adoption of the optionboth political and economic. The United States retains 3 basic options on the question of commencement of seabed mining: (1 ) continue the international negotiating process in the hope that UNCLOS III will eventually agree on an acceptable,treaty; (2) act in the interim to give mining companies access to the seabed; or(3) simply delay action until seabed nodules become sufficiently attractive economically to warrant their mining without legislated assurances. Until now, the U.S. negotiators have pursued the first of these policy options. Given the fact that the Law of the Sea Conference is not much nearer now to an agreement on Committee I issues than 5 years ago,i' and a treaty establishing a system of resource exploitation cannot be c:mcluded until mid-1976 at the earliest, an opportunity is presented to U.S. policymakers to reassess their options. Long before the appearance of the single negotiating text at Geneva, the prospective U.S. miners found amplereason to abandon the long international treaty-making process. Since the beginning, the ocean mining companies and their congressional supporters have argued thattime is very much a factor. Their reasons for a sense of urgency are based on their conception of national interests which closely corresponds with the interests of prospectiYa miners. The companies fear that land-based producers of the minerals in question will emulate the strategies of the OPEC producers, (Airtifil production and increase prices to raise revenues. 'Eh,: fledgling organization of some of the world's ciipper producers,

172 CIPEC, is viewed as a potential cartel, although recent studies by the Department of State and others have discounted the chances of a successful cartel in copper or any of the other economically interesting minerals of the seabed. Scarcities of the minerals found in the manganese nodule may not be sufficiently serious to warrant unilateral U.S. action toopen the seabed. As pointed out above, world land-based reserves ofcopper, nickel, cobalt and manganese are sufficient to meeteven high range projections past the year 2000, at only slightly higher prices. Despite this fact, however, the United States remains heavily dependent upon imports of these metals. Of more genuine concern to seabed mining companies is the problemof their decreasing technological lead. Spokesmen for the ocean industry have stated that the technological advantage that they have gained through early investment in the hardware for raising nodules and in the development of processing techniques will soon vanish as foreign firms increase their expenditures in ocean mining technology. The loss of their technological lead could result in the loss of business to foreign competitors. This argument is less important today, however, since ali of the companies except Summa have co-opted their major Japanese, British, and German competitors by including them inconsortiato explore and eventually mine the seabed. The greatest problem faced bythe mining c.ompanies is convincing bankers to loan them the money to make the required investments. According to industry spokesmen, banks have been unwilling to make funds available while title to theresources and security of tenure are still very much in doubt. Again, the movement recently toward the formation of consortia should decrease funding problems and help spread the risks associated with the development of seabed technology. Even given the balance of payments argument, which is less compelling in this period of floating exchange rates, seabed miners and their supporters have not yet f:onvinced Congress of thou'ent need to begin seabed mining. Even if the companieswere given clear rights of access to the seabeds today, it could be 5years before production would be sufficient to make a substantial impacton U.S. expenditures for imported minerals:Without time pressures, there would seemingly be little reason for the United States to abandon the international bargaining process if it expected that its minimum objectives from an international agreement could be fulfilled. However, if the single negotiating text that emerged from Geneva is an indication of what the United States can expect, there is ample reason for considering other options.

173 1 7 (-) The second option that has always been open to the U.S. is that of domestic leHslat ion which facilitates access by 11.S. seabed miners to the seabi l.. Until recently the only legislative approach heing Cffilsidefed was that embodied in Senator Metcalf's bill. The Nletcalf hill would empower the Secretary of the Interior to issue licenses to prospective 11.S. ocean miners and thereby establish 11.5. regulation of seabed mining where no regulatory system has existed. tInder the 1Ull's provisions, licenses would he issued until such time as an international agreement on the seabed were signed, and should dieinternational agreement adversely affectthe investments of the U.S. licensed firms the government would reimburse the company for its losses. To

Possible New Directions Within the framework of the law of the sea negotiations, there are at lea,,t two alternatives Lther than the Metcalf type of unilateral action or U.S. iicquiescense in a Group of 77 dominated treaty at 1 NC:LOS III, The first is a relatively simple negotiating strategy by which the U.S. could attempt to lead the international community towiird an acceptable treaty. The second involves a cautious legislated r,!sponse. Despite the realities of economic rind political power, devi.oping countries have gained the clear upper hand in the negotiations for a seabed regime. The single negotiating text, written by Committee I phairman Paul Engo of Cameroon working in near seclusion, cannot be tei med a compromise document. There is little in it that reflects negotiated compromises and it retains the flavor and, in some cases, the original language of the Group of 77 proposals. From the perspective of U.S. interests as defined above, it isdifficult to see in it a basis lor negotiation. If U.S. basic interests are to be met in an internationally negotiated seabed regime, the United States will need to redress the inihalance1 bq \,...enj the intensity of its interests

1 74 and the degree to which those interests have been take account al I INCLOS. Several years of good faith negotiations ha not helped in this (!flort. It is perhaps time for developed countries to apply some leverage of their own. Casual Conferendi observers findit hard to understand the misons for the current strong position of developing countries and the apparcat impotence of the develope(I countries in Committee I. Itis more than simply a matter ofN.. ()les. The more than 100 countries of the Group of 77 have widely disparate views of the seabed, but in large part they have put away their differences in iniblic and have spoken with one voice. The developed countries have not seriously attempted to coordinate their views. Rather than having a single draft before Committee I representing their views tn rtare 4 different ilraftsone cach from the United SLits, inthe U.S.S.R., and the Eight Power Draft by European The absence of developed country itnputs in th t. single te t of Conmiit teeIshould be ample evidence that eloped countries cannot afford to be disunited. With these considerations in mind, the United States could encourageotherhke-mindedstatesbothdevelopedand developingto join with it in an attempt to design a text which more fairly represents developed country interests. At the next session of the Conference in New York, the developed countries could present their united text to the Conference as a basis for negotiation along with the unacceptable Geneva text. To follow this strategy would require moving the negot;ations back somewhat but since the current text is not the product of a bargaining process and the compromises it embodies are mostly one-sided, itis nifi an unreasonable moyeJor the United Stateto take. An intersessional meeting could be scheduled prior to the 1976 UNCLOS session to arrive at the developed country text. While substantial differences exist among the approaches of Japan, the EEC, the United States and the U.S.S.R., they are minor in comparison with those between developed country interests and those expressed in the single negotiating text. Developed states (with the possible exception of those of the Socialist bloc which might finditpohtically impossibleto cooperate with other developed states against developing countries) would likely agree to combining their views Price they perceive that the current "negotiating text" provides little hope of meeting their aims. The conclusion of an agreed text might be reached relatively quickly. Finally, the United States and others could make it dear that they cannot accept any proposal as inimical to its interests as the current 130 negotiating tex t. They could express the hope thatcommon ground beRveen the tw 0 drafts could he found.Failing such an accord, however, developed countries could publiclyconsider the adoption oitheir own treaty unless substantialprogress is made by a specified date. This approach, of course, carries withitcertain risks.If deyeluptql ,:ountriesare forced to consider adopting theirown treaty, developing countries may react stronglyto what will be termed developed country pressure tactics. Suchreactions could be minimized by heing open about the effortto conceive a developed country text, by nmking thttext as appealing as possible to developing countries. and by the adoptionof a flexible negotiating attitude. P developed statesare forced to adopt their own treaty', t possibility of reprisals againstany one developed country are nunimized hy joint action.

A finalalternative, thatof a cautious legislatedresponse, provides another mid-range optionbetween acquiescing in the trend toward a treaty which willnot serve essential U.S. interests and a program of unilateralaction to open the seabed to U.S. miners. Under this approach, administration lawof the sea experts could draft a restitution expressing theintcnt to allow U.S. minersaccess to the seabed unless a treaty acceptableto the 1. IS. were concluded by a certain date. Passage of thisresolution by Congress would insure that it would be taken seriously by allthose at the Law of the Sea Conference. The date at which seabedmining could take place under U.S. ,aw could be carefullydetermined such that the Law of the Sea Conference he givenan adequate chance to concludea treaty. Since none of the prospective seabedmining companies or consortia is ready to begin commercialoperations. this date could be set will into the tuturesay December31, 1977- with no loss to the mining companies. Yetcompanies could be assured that the seabed will eventually be openedto them, one way or another. Legislation ciukt1 be drafted toat:company the resol ution, including proisions to guarantee U.S.ocean mining investors agaimt the possibiliii that they' will not he permittedto use their m1 7 ;a, and processing apparatus and techniques, shouldthe United States findit necessary to accepta restrictive mining regime.Other developedcountries could be encouragedto adoptsimilar resolutions. Provisions for reciprocalrecognition of each others' claims could he an integral part of theaccompanying legislation, as well as generousrevenue sharing arrangements. This approach does not requireparallel action hy potentially reluctant developed countries. It couldbe considered alone or in

176 181 commit] ion w Olt dit effort to reach a (levvlop,..(1 country tex t. Again, the United States would be open to criticism for pre...stiring the negotiations.Stich criticism could be dampened byitclear expression in the resolution that the 1. Inked States would prefer an "acceptable" internationally negotiated seabed regime, itild by [minting mit thinittreaty vithiti Americim signature would supercede any 11.S. legislation, but that the Ilnited Stdtes cimnot waitforeverfortheinternational communitytosettleits differences.

Notes

IIt..I 'I tH tilt( 1'0111t tin\ t1111 it.:eliler i:Iilt.111.11.\ II'V,11 ii(11:11111ents. 1,1:? tie ttlulli! itN.,1% 1)1/, the 1.44ty ot 01I.onipiled and edited by s La" R,,hir, , \ 1\ (Dobbs (ke.ina .173) Aim t. 14olln k,-United stal s()realPalo 1.148-)97 unpublished dissertation. .1 he johns Hopkins Iiil,itt. 197 I). Itilt poll, \ pitt vs,. Set. I kill!' k. Mdke range

For,:,.:11 Polio , W in Iii1,1-2 I. 680.-A 4 Petroleum lie tinder the (eon Floor. Supplemental Report et the NPC, Mari I:19- I. p t rider the ...au mile ei onomic zone proposed at l'NCLOS III. the' S would gain [note area than aliN other unastal state. a total id 2.222.000 sq. miles The next biggest gainers 11111111.1' are :\ astralla 2.1143.3(111 sq. nn. ). Indonesia 11.577.300 sq. mi.). New Zealand )1,411".51in sii, 1111.1 (.1111.1).. 1.379.0(111 sq. Canada s as the leader in this ino% ement and has dli npted to ronvince 211 or so other slates th it they would ,intl 1. by opt in.) tor edge ot the margin oser 200 miles. The in, ri.a if i.t islv ut tb, S th.partmentii the Freastirin the law of the sea and 'mono( rt.lesot 1 '.S. I,ivit the sea policy that accompanied it also Limn dotted to the ini rpased interests in orean in.tiorals within the U.S. position. Naiional P-Tr111141111CItlfli )1,41:1 POtr16111f, fit sour, es. 1975. pp. 42-43. The propitsal is biased in ta or of broad niari..(in states. Ott the northeast 11.5. and Canada. the b st ot the slope even III the of boundary time it, often more than 20n mile. from short.. sy (tile tiltthe west coast Latin American states. the distant sis olti n less than mu miles Al least 20 shoes lit int" thl.bruhllif.r-lhan.200- nule categorN. See especi.O. I W. 1)evanney, T;ie Ws Petroleum Pic. \HT Seat:rant Report 75-11a Fulirlial 1075 See (;onialo HNits. '1)ecpsr,i's Ad% entures. Crotilis Revisited." liitcrootionol Lots yer. 9. No 2. pp. :7)-281: Deepsea Ventures, Inc.. "Claims ol Exclusive Minim; Roghtsar.,1Request tor11ipioinatic Prolei non and Protectlim of In- vestments,-Irii rtuitionol I,tuii Nloteriols. Vol. XIV.5iu I,Ian. 1975; and l).P. (iConnell. Internohowil i London: Stevens and Sons. lad.. 1967,1. Chapter 16, "MaritiMe Territory." Retiollios. literally the )uroperty ol no one. This doctrine under international law was taaditionalk applied to ocean resources outside national jurisdiction. and r.ontinues to he applied to sms!rrnir.H resouraes :a the -iniernaln :al area.- and the high seas then selves 0's uruniums. or the property of the commons. is frequently applied to resources f,1:he seabed. as evidenced by the voteloft to zero (14 ilbstentions) i» the Declaratom of Principles. r.,meral Assembly Resolution 2749. fler,ember 17.97(1. s ho.h dedared seabed resourte.s to be "the i ommon heritage of mankind." Th.I !nited Slates does not accept thisii.w.

177 18 '? 1.111( 11111111 111 7 l11111. nuniliervil 7" countries in the viirly days tit 1.1!,:(:IAD 11%. ntor.H.1, iFiI 100 itthe 1.,1%% ot the Sea Cittiterente .' The I\ tittr,,I IttIIIIiI hunt int-hides 50 pct.(,11 ms..nershipIt. Kennecott and lesser shores ( %%nisi 1/% TI11111 /.1111(.11111.11.11111111111, (.011S11111i.11111i I:11111 11.1111,h111,,\III .1111111111 11.11k111. and Noratiti I\lint,s (Toronto) The Stmuna atom is in hided m this anal sis t ith the Implit it ssumption that raising rikit stilittro Ines ft out tile deep sedlied %%ill pr to lie unit. a short run Ilse ol IFri sitttutiiti It't 1111tIlitgl 111(11111.1,111,t1 0111t1,111%' 10wine Inanganest nodules \ tl utsilitipt. the t''uiurii (:tanpuny is a partner In phnt tttlt NIchinten Co. 1.hI .(: Ltd., and Kanainatsu raisho 1., it FA%

(: t lrt I hiI iitiiu o tsitteep (It tin Mineral \tuning and the ltilt this It I Pdit t.,"( h run Protect (ii.casional No..i. Johns Ilkit. Onit ,.1!-.Itt. Washington. D.C.. 1(174 litto, t. 111110'1 \it 10, 1111 rNCI.()S111111.1.1,1011,cittilit conclude that p'iIitts mon. pal.ttied after three sesslotts,d the( 'AInh.rent:t. than thev %%Treat the (wise! ('ert,nol% !;ttle us 1111111es,-; to make the essential «Iniiiriiniises has liven et ',ion! III(.1,1111111111 and a, vet there is no hastsiii %%Inch Itt lort.f.ast untreasing tiettobt%uittur Fr

i 8 4..

178 CHAPTER 8.

MARINE SCIENCE

Introduction

The goal of marine scientific research isto observe, understand and explainthe oceans. Marine science research comprises programs of observation, collection, measurement and analysis in order to describe the oceans, their content and theirphysical interfaces and to understand theprocesses operating in the marine environment. Itis difficult to quantify the value of scientific knowledge, but it is widely recognized that knowledgeabout the oceans is a prerequisite to optimum use of the oceans and is the basis for most present and future ocean-relatedactivities.

Domestic Marine Science Interests Scientific research involves a varietyf methods and ultimate applications. Marine scientistsare found among all U.S. ocean interest groupsfrom fisheries to defense interests. Their work has been distinguished. according to its immediateapplication, into three categoriescommercial, militaryintelligence, and fundamental or academic research. Sucha distinction is, of course, difficult to maintain in practice since whatconstitutes fundamental research at one point in time may ultimatel havecommercial or military value. Some suggest that themost practical way to distinguish between fundamental arid applied researchis on the basis of whether the data, samples and resultsare proprietary or are open to the international scientific community. In effect, this definition would rest upon who is doing the researchamining company, a naval intelligence vessel or a ship from an academicor private research institution. Such a definition has merit, when appliedto U.S. interest? .ce it indicates the distinct problems confronting the threecw,.; pries of research in the present international environmental.in the context of the Third UN Conference...on the Law ot the Sea (UNCLOS III). From the point of view of acquiring e.c.?1,tific knowledge, the marine science communitysupports maximum unrestricted access to all areas of the world'soceans. This is particularly true of the academic researcher and themilitary intelligence communities. A commercial interest, suchas a major 184 179 Oil company, prefers to have a w ()rking oteeaioni with a coastal state before it invests heavily in research and exploration. The military intelligence community (idistinct from the military research community ) can only do. elop such 11 working rdationshiP in areas offshore allied nations. Otherwise it collects data by clandestine means.

The researchersfrom academicinstitutionsseek special guarantees for open research and for unrestricted mobility to study the marine environment. Unlike the multinational commercial interests, academic institutions have not developed special offices for the conduct of relations with foreign governments. When engaged in research in an area claimed by another state, academic institutions have generally relied on the Department of State to obtain deal ances. At best. this has been a time consuming process, and at worst the State Department will not seek permission for research in areas which, although claimed by a state, are not rec.ognized by the United States as pertaining to the coastal state.

The academic marine science community finds itself in a difficult and somewhat isolated position vis a vi other U.S. interests. While itis often financially supported by business and the Navy, it pursues a distinct viicy on access'to coastal waters. The academic science community shares the intelligence community's preference far freedom of access to near shore areas, but it breaks with that group in its support for a special right of access for research intended for open publication, as opposed to all other research. Commercial actiVities are, of course. not publication-oriented. Most segments of the academic marine science community lack the cat)abilitv and therefore the willingness of commercial interests to negt hate arrar4;ements that offer access to coastal state areas in exchange for some benefit. It would be difficult for a single research inst !ction to devote a substantial portion of its resources tc de ...eloping such a capability since academic researchers range idely over the oceans rather than concentrating, as commercial rtsearchers do, on exploration of a few areas. To be sure, the largest U.S. oceanographicinstitutions,theScrippsInstituteof Oceanography and Woods Hole Oceanographic Institution, have over z'orlber of years gained some experience in dealings with other go ernments and scientific institutions, but for the most part, academic marine scientists are dependent upon the State Depart- ment to facilitate arrangements for research off the coasts of other countries.

1 80 U.S. Policy and the Lav of the SeaConference

While the several segmonts of the marinescience community may differ accordMg to capability, mode ofoperation, application of research, arid dissemination -1 researchresults, they seem to share a fundamental belief to the effect that scientific knowledgebenefits the internationalconneOr .iy and that researd should remainas free and unrestrictedIS possible. This conception is basic to the position that tin' United States has aduptedin UNCLOS Marine scuitit it u. rese:irchwas placed on the agenda of the Conference in the original 1970 GeneralAssembly Resolution calling for a Third 1 N Conferenceon the Law of the Sea to begin in 1973. It remained on tit-, igenda,was elaborated, and indeed was mentioncil in ci0 unction with several other agendaitems when the final Conference list of subjects andissues was completed in 1972. Albeit relat u.te a namher of other issues, the main workon marine snience research tv,os allocated to SubcommitteeIII of the UN Seabed Commit ttic ..nd then to itssuccessor, Committee III, when the Col.fercnce itsel" began.

Evolution of U.S. Policy Although the first detailed U.S. statementon scientific research was wide e.. litigust 11, 1972, the United States didnot submit draft artelcs tin the subject until July20, 1973.' With relation to its polic:, on other ocean issues, thedevelopment of a positionon miiri no: science was relatively late. Inpart, this was due to the fact th. i,ongoviirnment marine scientists did not beginto take an active role in the U.S. policyprocess until 1972. The major cause of the delay. however,was simply the slow pace of the Seabed Committee and the relative lack of attentionto the subject until quite late in the work of the Committee. From its first statements on scientific research, theattitudes and pulh:w the United States remained generally consistent with some modifications until t he United States movedto accept a oroad economic zone policy in 1974. The UnitedStates has stressed the importance of marine science researchin the production of knowledgethatisbeneficialtoallmankind. Since ocean phenomenatranscendman-madeboundaries,international arrangements should, inthe U.S. view, facilitate ake.ss for scientific investigations. Scientific researchshould, of course, be conducted in accordance with internationalenvironmental standards and, in areas of coastalstate resource jurisdiction, should protect the legitimate 'economic interests of thg coastalstate.

181 186 More specifically,thet tnited States has proposed that the coastal state should have the rightto authorize and regulate scientific research in the territorial sea. 13eyond that in areas under national jurisdiction, the coastal state should have the right to control commercial e\ ploitation. With regard to scientific research in the zone, the United States has consistentlyadvocated seven cotistal state rights or obligations on the researcher:

advance notification of the proposed research including dOitiled de,cription of the research project the right of coastal state participation sharing of all data and samples with the coastal state assistance to the coastal state in interpreting the results of rescarch and their relevance to coastal state interests Open Publication as soon as possible of significant research results compliance vithallapplicable international environmental standards flag state certification that the research will be conducted in at:cornce with the treaty by a qualified institution with a view tu purely scientific research.

While the United States no longer refers to-freedom of scientific: research- beyond the territorial sea, the United Stat,is has stressed thatif the foregoing obligations are fulfilled, tcc coastal state cannotforbid researchthatis not relatedto exploration or explMtation of resources in areas under coastal state jurisdiction and beyond 12 miles from shore.

Within the Law of the Sea Conference, the U.S. has found itself in a minority on the issue of scientific research,although support for something iess than a full consent regime has been growing. The U.S. is alone in having a major ocean-going academic research fleet. And the promotion of I 1.S. policy on marine science research has run into significant obstacles in the UN forum. Asnegotiations have progressed, however, differences between land-locked and coastal stales and the refining of national interests on scientific research have mitigated the North-South split on this issue. The intensity of U.S. commitment to its position, the value it ascribes to other ocean interests, and the strength and variety of sentiment of other nations will be factors in the outcome for marine science research. 13

182 The Present Legal Regime and Pressures for Change Thereisonly one mentMn of marine science inthe four conventions that resulted from the 1958 UN Conferenceon the Law of the Sea. The Convention on the Continental Shelfspecifies that -the consent of the .,:oastal state shall be obtainedin respect of any research concerning the continental shelf and undertakenthere. Nevertheless, the coastal state shall not normallywithhold its consent. .in the case of pur lv scientific research, and the coastal state can participate or be represented. This provision hasbeen subject to varying interpretations since itwas formulated, andiIS been used by some coastal states toprevent or impede scientific research. The (Jolted States interprets researchon the continental shelf to meat research thatcomes in physical contact with the shelf. This in, erpretation is not, however, widelyaccepted. Nor is there agreem ni on what constitutes fundamentalas opposed to applied research. There is mention of marine science research in the 1958 Convention on the Territorial Sea and ContiguousLone or in the 19!.. Convention on the High Seas. The UnitedStates and a few other countries have indicated thatthey consider scientific research to be among the highseas freedoms. although it is not specifically listed by the convention. In practice, coastalstates have required consent for the conduct of researchin the territorial sea as well as other zones of jurisdiction. In thecase of a number of Latin American nations claiming 200-mile offshorezones, the legal requirement for the conduct of research hasnot always been clear. The tendency and preferenceof.. these nationsas of other developing coastal statesis to require coastalsta.te consent for research conducted throughout the 200-milezone. The Group of 77, however, has not succeeded kn arrivingat an overall position on a consent requirement due to differences between its land-lockedand coastal members. The Group has beenmore united in dealing with the area beyond national jurisdiction, wherethey would have scientific research controlled and authorized bythe international authority. The attitudes reflected in these legal positionsare directly contrary to the prevailing Western view that scientific knoWledge constitutes a public good which benefits all mankind.Developing countries argue that the technologically advanced nationsare better able to utilize the results of scientificinvestigation and therefore the benefits accrue unevenly. Furthermore,research has been conducted off their shores which has beencontrary to their interestseither in terms of commercialor mditary application. To

183 188 prevent unwanted military research and to gain the benefits from research of commercial application, they argue, the coastal state must ha% e the right to control research in twelve mile territorial seas awl economic zones. The motives of developing coastal states are mixed. In addition to hiars and apprehensions about unknown offshore act iv ities, tlwy are practically motivated to control access to substantial economic resources. In exchang..-t for consent to conduct research in their area, many developing nations plan to require training, technical assistance, and other forms of development aid. Developing countries are divided, however, over how to share these benefits with the land-locked and geographically disadvantal.ied states. For this reason, the Group of 77 has not dev eloped a unified position on scientific research. The differences, however, lie not in the question of whether scientific research should he «introlled by the coastal state but in the allocation of benefits to he gained from control. These developing country attitudes w ill play a major role in determining the future legal regime that will apply to marine science research. The outlines of that regime are emerging at the UN law of the sea meetings.

The Single Negotiating Text From the perspective of the progress of negotiations, it has been fortunate that a range of approaches has evolved on marine science researchratherthanaconfrontation between coastal and ,tesearching nations. The text produced at the Geneva session reflects some hut not all of the approaches to dealing with scientific research. Several portions of the text indicate the type of regime that may be agreed upon in an international treaty. The single negotiating text is in three parts, corresponding with the three committees of UNCLOS III. Each part contains provisions dealing with scientific research and each is the product of a different committee chairman. There are therefore differences and conflicts between the treatment of issues from one part of the text to another. This is particularly true of the provisions on marine science research. Part Iof. the Geneva text deals with scientific research in the context ofi reime for the deep seabed, and is highly restrictive.

Articles 1 .ind 22 provide that "activities in the Area shall be conducteddirectlybythyAuthority"includingactivities associated with exploration.find exploitation of the Area, such as scientific research. These prQvisions clearly place research beyond nationaljurisdictionunderthe controlof theinternational authority. Articie 10 elaborates the authority's ccntrol in greater detail. Elsewhere the text provides that scientific installations such 139 184 as data buoys may be restricted by the internationalauthority. Article Ili slates that stationary andmobile installations "shall In! erected, emplaced and removed solelyin accordance with the provisions of this Convention and subjectto rules Pil regulations prescribed by the "Authority." Theappendix to the Committee I textis equ,illy ominous for the conductof unrestricted marine science research. Parl 11 of the Geneva text touchesupon scientific research in the context tif various forms of offshore jurisdiction.Articles -16 and 18 provide for coastal state regulationof "research of the marine environment and hydrographii. surveys"in the territorial sea, With regard to the exclusive economiczone. Part 11 vests exclusive jut isdict ion over scientific reAearchin the coastal st 10.e as wellas "exclusive rights and jurisdiction" withregard to "artificial islands, installations and structures.-The Commiree 11text conflicts directly with that of CommitteeIII on sciennfit: research. Given the Allocaticn of scientificresearch to Committee III, its inclusion in the economiczone section of Part II is surprising. The reference to scientific researchin the Committee 11 textwas apparently at the request ofom: delegation and in all likelihood, the approach of the Committee IIItext will prevail at the next session. The irticle is instructive, however,as a reflection of the extreme view of the Group of 77 developingcoastal states. It provides, in Article 49, that: The consent of the coastal Stateshall be obtained in respect of any research concerning the exclusiveeconomic zone and undertaken there. Nevertheless, the coastalState shall not normally withhold itsconsent if the request is submired by a qualified institutionwith a view to purely scientific research, subject to the provisionthat the coastal State shall have the right, if itso desires, to participate or to be represented in the research, and that theresults shall be published after consultation withthe coastal State concerned. The effect of this article would beto place scientific research in 36 percent of ocean space under coastalstate control. The provision which restricts publication ofresearch results without coastal state permission reflects an aspect of developingcountry positions that necessarilyconcerns academic researchers. Open publication is the goal and purpose of academicresearch. Without the freedom to disseminate research resultsno academic research will take place.

The continental shelf section ofPart 11 applies the highly restrictive provisions of Articleio49 to "research concerling the 185 Continental Shelf and undertaken there" (Article 71). The text defines the i:ontinental shelf to include the margin where it extends beyond the 200-mile zone. Thus, under the terms of Articles 49 ind 71, research in approximately 40 percent of ocean space wooi be subject to coastal state control. High seas freedoms are discus the next section of the Committee IItext. Article 75 includes freedom of scientific research aniong the high seas freedoms, "subject to the provisions of Parts IV and. .[scientific research]." Part IV of the Connuittee IItext refers to the section on the continental shelf. Although the reference to scientific research as a hinb seas freedom is notable in view of its absence Irom the 1958 c.,nvention,iti.made subject to provisions that are as yet unspecified and may, in practice, be severely limited. The Committee 11 text also deais with scientific research in the context of archipelagos. After defining the archipelagic 1.vat ers to be enclosed within baselines of up to 125 miles, the text elaborates the concept of -archipelagic sealanes passage--a form of innocent passage through archipelagic waters. In the course of such passage "foreign ships, including marine research and hydrographic survey ships, may not carry out any research or surve:, activities without the prior authorization of the archipelagic State" (Article 127). The creation of archipelagic waters will subject scientific research to further coastal state control. In summary, the Committee II provisions of the Geneva text range from providingfora potentially qualified freedom of scientific research on the high seas to a highly restrictive regime for scientific research in extensive areas of coastal and archipelagic state jurisdiction. Confusion and inconsistency are apparent throughout. Moreover, as mentioned earlier, ihe inclusion of such extensive references tscientific research is puzzling in light of the mandate given to Committee III to handle marine science. Of the three parts of the text produced at Geneva, the third part most reflects negotiation and compromise. The text on scientific research is based on an elaboration of four distinct approaches or "pillars" that encompassed the various national positions before Committee III. The small number of issues before the Committee provided the opportunity to articulate and begin to negotiate among the tour pillars. It should be noted that this Comrr ittee was the only one not chaired by a country representativ,-: from the Group or .77 and the text attempts to accommodate developed country interests. The Committee III text defines marine scientific research as"any study or related experimental work designed to increase man's knowledge of the marine environment.- It provides that research in

186 191 the territorial sea"shall be conducted onlywith the explicit consent of... the coastal State." With regard to researchin the economic zone and the continental shelf, the text frawsa distinction between fundamental research and research relatedto living and non-living resources.2 The coastal state must give explioitconsent to the conduct of resource-related researchas well as to the publication or dissemination of the research results. The researchermust fulfill coastal state requests for information andprek!omary interpretations of results. In the case of both fundamentaland resource.. related research, the text-providesa check list of information the researcher must supply to the coastal state:nature and objectives oftheproject;meanstobe used;descriptionofvessels; geographical areas where activities will takeplace; expected date of arrival and departure; and thenames of the researchers and sponsoring institutions. In the case of fundamentalas well as resource-related research the text setsout a number of conditions. The coastal state has the right to participateor he represented in the research project. Coastal stMe participationin onhoard research would occur at the expense of thestate conducting the research. The researcher would provide the coastalstate with the final results of the research project and would"undertake to provide to the coast al State on agreed basisraw and processed data and samples of materials" (Article-16). If requested,the researcher is to assist the coastal state in assessing these data andsamples. The researcher is to inform the coastal state ofany major change in the research program. And where the rasearch is ofa fundamental nature, the researcher is to assure that resultsare made available through appropriate international channels. The Committee III text provides that, in theevent of a dispute between the coastal and researchingstates over whether the research is fundamental or resource-relaied, thedispute should be submitted to the dispute settlement proceduresto be elaborated by a law of the sea convention. Tho text als,, specifies that land-locked and geographically disadvantagedstates of a region will be notified about a research project and given theopportunity to participate. When research is conducted in the internationalseabed area, the researcher shall notify the international seabedauthority (Article

25). If "resource-oriented. . . research. . .is planned in an area immediately adjacent to the economiczone or continental shelf of a cousta' ;..tate," and if "entries into theeconomic zone of the coastal States may be required" to conduct incidentalresearch, coastal state consent in 1:it he granted. Article 25 furtherspecifies that the results of research in the seabedarea shall be made internationally avaiiable. The orientation of the CommitteeIII text on research in

187 192 the deep se.i,e(I is .(WslaillJall%ht terenttruni that of Committee I.

S111111,111% the Committee Ill te\ tIi scient it IIelltlithIletlt in the 111,11111e ell \ Int111111'111 dt Mkt,1\1111 the(01101 C(11111110tee tets. Arnett'2tisite( dies111,It r1011ti Ilel'estiatAtit operate anti 111,i11,eteiii he respousibilik tor such installations or equipment shallI tillilil th the Slates oithe intei national orj4anizat ions hi( h ha% r dephi\ ed them. unless (aher%% 151 iiitl bet \veen the parties ( Hui erne(1,- In areas ot( oastal state pluisdic tool, ever. -the( oastai State has the pm% cr to inspect and ensure that the installationsoiequipment are usedin conformity\vitlithe purposes and conditions set out tor the coodu(ot the research prole( t j Art o le .2.9). 1/espite the im (insistent ies and ( ontlisiou of the tets emerging 11 (on the;elle%1 session ot the I.,i %%. id the Sea Conference, the trend til%% ard tar more restrictions (In marine science research is clear. The pro% Isom (It the I9Tat (:onvention on the Continental Shelf for (.11tHtate consent to conduct research %vas merely the first step to %%aril the t.pan,aon of coastal state control of offshore research. The relati% ely until tered access enjoyed imtil recently to ocean

1111'115 )1.A. 11111i1111111T11 territoi iii sea is rapidly commg todfl(Md. Suit t' the 111.1till' portion of Marine science rese.irch is comIticted iii ottshore .11'eds. the tAtension Id coastal state control to 200 miles and the beyondeveniflimitedtoresource-related research \\ ill mark a major (liange in the environnlent for marine stuiiiie. 1110 Change %yin he even more radical if the international seabed authority is given flitI'It.1htto regulate research on the seabed beyond national jurisdiction. The options confronting the l'nited States %vitt depend upon tal \vhether or not a treaty etnerges from I 'N(..I.()S III and Oil the contentsof thetreaty. if one results. Ntoreover, the options %Yin vary for different segments of t.he niarine scientific ctiiiiniiinit mu for the r.S. t;overnment asa whole.

Options for the U.S.

In considoring options for I l.S. policy on marine science research, number ofgeographic distinct ions, modes of action, actors and interned ion,d outcomes must be keptinmind. The options considered are confined to the conduct of marine science research in the traditional manner. While highly usefu:, satellite-conducted oceanography can never completely substitute for ship-based ohser% at Mc s. 1 3 188 Options Based on l,eographic Area With rerd IIgeographo. areas of theoceans. different options may apply in offshore areas opposed to thedeepseilbefl.In onsidering national policy. severalmodes of iiction are possible oat Halal,unilateral.bilateral.regionalorinternational.The tlphittis will.Ad' 1:11ur5e, vary accordingto the ,o:torI qtlestiM1 \\Iletileritis a commercial science intere.st,military research, ,o.ademic research. ortinES, (:01:ennInt'llt as a whole. Finally,the feasibility ,ind acceptability ofoptions will depend upon whethera treaty emerges from HNCInS III.andif one does result,upon whether its provisionsare unacceptable, generally acceptable,or acceptable in part to the I InkedStates. OptimIs for marinescience researt:h inoffshore zones must he distinguishod from those inareas beyond national jurisdiction. The importance attached by coastalstates to coastal areas is an 'mpoutant political difference with operationalimplications. On die other hand most scientific researchis conducted within 200 ides of shore. Only 1.5. commercialinterests are fully accom- n ()dated to the prospect of consent regimes inthese offshore areas. intelligonce activitiescan look forward to either an acceptable regime ora deliberate or surreptitious continuation of activities in these areas. The academicresearcher, without an acceptable legal regime in coastalareas. will lack needed official support and can either (TAse researchor develop sonie bilateral accommmlations with coastal states. In the deep seabed highseas areas the options will be somewhat different due In part to reduced coastalstate sentiment and harassment capabilities. Commercialscience in the are,1 will initially revolve around deepsea mining, and in the absem recognized politicalauthority, will require a workable national regime or U.S. Governmentlegislation and su. Military intelligence and scientificactivities will probably tero,' to continue either within an acceptable regimeor in explicit disregard of an unacceptable treaty. The academicresearcher will need either an acceptable international regime or U.S. assistance andsupport for the continuation of research inareas beyond national jurisdiction.

Feasible Modes of Ution Different modes of action will be appropriate dependingupon the area, the group or interest in question and the overall international environment. The first level of action to be consideredis domestic national action. This can be taken by privateor by public agencies 19t 189 on a numlwr of (juestions. Withregard to private activities. the opportunity e\ists to establish an institution or mechanism to coordinate. certify and police academic research programs in waters of whet. nations orininternational waters. Such a mechanism commends itself either with or without a law of the sea treaty and in addition to or in lieu of %vhateverregulatory or certifitation mechanisms are established within the tl.S. Govern- ment or internationally. A possible center for suchcoordination, certification and self-policing activities is the llniversity National Oceanographic Lahore( tory Systein (t INOLS). UNOLS operates at present to coordinate university research ships and couldexpand itsfunction with relative ease. If international guidelines are agreed (11)011 %vitti regardtonotification.participation and publication of research results, UNOLS could interact directly with the U.S. and foreign governments and with. U.S. ship operators to ensure compliance of its 'essels. If an international agreementis not forthcoming, I JNOLS could nonetheless establish appropriate standards for its own vessels which, if regularly iulhered to, would develo- a measure of acceptability for UNOLS approved vessels. Tlw organization could control the behavior of its ships .hrough moral suasion and the threat of withholding certificationwith all of its atten0 int;mplications for receiving future government funds. The U.S. iica(lenni: fleet is unique. Research by members of this group could offer signihcant benefits to other countries, and if properly managediciulemic marine science research could continue to flourish. National action at the government level to facilitate research could begin withastreamlining of procedures within the Department of State. The newly created Bureau of Oceansand International Environmental and Scientific Affairs could improve its capabilities to develop a coherent oceanpolicy and to take positions and actions consistent with that policy. TheOffice of Marine Science and Ocean Affairs, under the Deputy Assistant Secretary for Oceans and Fisheries could regularize its staffand improve its operations for securing ship clearancesfor research conducted within the jurisdiction of other countries. The State Department may not always be in a position to be as responsive to the needs of marine scientists as a UNOLS mechanismmight be. This would he particularly true where research programs require access to areas the U.S. does not officiallyrecognize as falling within national jurisdiction. In such instances, where theState Department cannot facilitate scientific access,itcould avoid impoding it. Unilateral action encompasses activities with direct inter-

190 national implications and may he'd two types: j official action taken in isolation or t2) officiid to:t taken smodtdneously vitli other like-minded stdtes [sometimes rel-rredto as -parallel" action). Unilateral actions may include e\ ecutive branch policy pronouncements. legislation and implementation. "fhe U.S.executive may assert and implement a national nob(v tvith regard to scientil ic research in the economic zone,on the coot Utental shelf or in areas heyond. Siinil.irlv, Cimgress mat enact legislation which promotes research hy other nations ill areas of U.S. jurisdiction, with appropriate notification procedures andassurances. Legisla- t ion tvith regard to high seas activities and seabed mining could also delineateregime for marine science research lwy ond national jurisdiction. 1.:\ ecutive hranch policy assertionsor congressional legislation may be undertaken in isolation fromor in conjunction tv it hsimilar acts by like-minded governments. Additionally, policy pronouncements Or legislation can lw taken in the absence of an international treaty. in reaction to an unacceptable treaty or as an elaboration of inul spelling out of the U.S. into.. pretat ion ofan acceptable treaty.

Tbe effectiveness of such unilateral acts would dependupon U.S. willingness to enforce these policies vis a vis other nations. United States resolve to conduct enfo;Tenient activities would depend in huh upon it number of variablesthe degree of internat ional and domestic support for the U.S. position, the state of international li1W, and the identity of the parties against tvhom enforcement measures %veil. required. The. implementation and enforcement of U.S. policy would occur most easily where U.S. goals anda widely accepted treaty regime were in harmony and where links with the offending country were not extensive. As such ideal situations rarely occur, the decision to enforce certain sanc.tions in pursuit ofa policy on scientific research will probahly have to he takenon an ad hoc basis in most instances. Bilateral arrangements to facilitate the conduct of marine science research may beofparticularutilityini:reasofif shot e jurisdiction. Whether there is or is not an interna'ioral ti.ty, the UnitedStatesmaywanttopursueregulari. hilateral arrangements for research with those countries nearesttothe United States.Cumbersome a' consent procedures might be avoided through bilateral agr, .s tchich establish channels for notification. participation.t. and technical assistance. An agreement with Canada h been in effect for thirty years providing fort went y-fnur hour.i notice for the conduct of research. Similar reciprocal agreements might he developed with other neighlmring countries. In ;hecase of more

191 19 distant countries, bilateral agreements may lie advantageous to both the academic researcher iind the foreign government. Middle Eastern govermnents, for instance, may vant certain types of research conducted offtheirshores,but may not have the capability and may not want to have the research tied to a commercial agreement. Bilateral agreements which facilitate the ,iccess of iicademic researchers could be mutually advantageous in such circumstances. Regional approaches to academic marine science research would be similar to bilateral ;ipproaches. They would he applicable primarily to areas of national jurisdiction. They would involve regularizing means tofacilitate access as well as to promote training and participation of non-U.S. nationals. The ildvantage of regii.nal approaches relates to the scale and time dimensions of oceanic processes, Regional or cooperative studies are especially appropriate because of the %.ast scale of oceanic processes and the length of time over which observations need to be made. The Cu Terative Investigation of the Caribbean Adjacent Regions ICICAR) is one type of regional program that might be encouraged.

Withregardto a specificcommercial activitysuch as fisheriesor monitoring the marine environnient, cooperative regional approaches are equally appropriate. Proper management and control in areas of regional interdependence require scientific. information comprehending the region as a whole. Regional approaches can be accomplished through international organizations such as the Fisheries Deportment of the Food and Agriculture Organization(FAO)ofthe UN ortheIntergovernmental Oceanographic Commission (IOC) of UNESCO. with an eye to resource conservation and proper management, While international organizations may further regional approaches and even bilateral arrangements, their most important contributionto marine science research may be to promote research, set standards, certify programs or. in a distant future, enforce standards at the global level. Among the problems which confront oceanographic programs of various international organizations are lack of financial s'upport and duplication of effort between agencies. As ocean problems occupy more and more attention within the UN system, a strong case can be made for the establishment of a single technical organization to deal with scientific and engineering aspects of ocen affairs. This organiza- tioncouldprovide technical informationto UN and other organizations which deal with ocean resource management. It could serve to coordinate ocean science and engineering activities of 1..1N and non-UN organizations, The IOC could form the nucleus

rd4 192

:14 14 Snell an l'irga111Za111411111.1Cti ler V% Olt the FAO Department of Fisheries, the IXorld Data Center System for oceanography, the I 'NESCO Division of Marine Science, appropriate segments of the WorldNleteorologicalOrganization,andtheInternational Ilyiftographic Organization. Dependingupon the completion of an international law ot the sea treaty, the role id suchan lffgimizittion (Amid encompass responsibilities in training and technicalassist- ance. coordination of cooperative programs of research, certification of national programs of research and elahorat ion of environmental standards. C(1111'SO, ilit ljitjst 11111H/14(1W international activity \vith regard to marine science research is the negotiation underway in theUN Law of the Sea Conference. IOC, FAO, INICO, and otherinter- national organizations are deferringa number of decisions pending the out (AMUe cif the Conference. The Conference has beenunderway for seven years, including the preparatory work ofthe Seabed Commit tee, and plans to hold another session in Spring1976, There is 00 ,155111'11111:e that this will be the Itsisedon or even that a treaty \vitt lie agreed upon at some future time. Ifa treaty s agreed to, its provisions vith regard to scientific researchcannot, with any certainty, be ilddressed from the terms of. the 1975 Genevatext.

Alternative Treaty Outcomes Tlw l!.S. options with regard to marine science researchmust be considered in terms of several possible outcomes. TheConference may produce atreaty which the United States finds totally unacceptable: or the Conferencemay produce no treaty at all. AlternativeIN it might produce several treatiesover a period of time as in.zreement can be reached on each issue. On the other hand,a single treaty might be produced which is generally acceptableto thet Inited States. A variant of an acceptabletreaty outcome, however, might he asingletreaty which, although largely acceptable, entails undesirable restrictionson scientific research. U.S. policy options regarding marine science inzones of coastal state jurisdiction and in the area beyond will differ accordingto which of these international outcomes prevails. While from a domestic standpoint,no treaty might be equivalent to an unacceptable treaty which the United States rejectsin toto, the same tI,S. actions in these two differentsituations willgenerate very different international responses. In both cases, the U.S. could consider the adoption of legislation dealing withan economic zone and with a deep seabed regime. This action might betaken in conjunction with anumber of like-mindedstates.Butthe international reactiol to such action would be far less negative ifit 198 1 93 Wel'e1,11011IIIell)iittirittiiiiiiiei.ii 1: ill: 1.11.1111 rtltiitltiitill

1 IlLiii/Fity (11 li.itiiifskiteS. UPPOSIttoll tii 1 redt IIPPrOVed III. Old&OtcOlirtie, liteaSier the 1111111er sitUat

Ill the dhisellLO 01 Or ill Fedi:thin to i treitV, the 1.111ited States Might consider legislation which delineates its pusitionapplicable bp a '200-mile ecmmlni( zune and to the continentalshelf beyond. With regard to scientific research, the legislation could permit scientificresearch hy otlwr statesilliireiltistihjtrtto H.S. prov tiled that the researcher fulfilledthe obligations hir moilicat ion, participation. and uu in that art part of die present l'.S. position. In the ahsence of a treat , such a provision mighthe simultaneously adopted lw other states who also feel this is an ecommocal vay hi have research carried out in offshore iffeils.This provision would probably not he yidely emulated,however, particularly if it were contrar \ to an international treaty providing for consent regimes. In such a situation it tvould bedifficult to enforcenotification regime for academic research. !Military intelhgence operations could and doubtless wouldhe conducted inthe itbsence of or in reaction to a treatyeither surreptitiously ir backed by the capahility to deter any harassment front coastal states. Marine science related to commercial activities would reimiiileastaffectcd,Bilateralarrangements would generall:: be %vorked out \vith the coastal stateeven with respect to fisheries. since the general acceptahilitv of the economic zone concept has grown. Public and private fundamentalresearch in the economic zone willfare worstifthereisno treatyor an unacceptable one. While domestic legislation may encourage similar enactments byalimited number of other countries, academic researchers will he on their own when it comes to securing access to coastal areas where the State Departmentdoes not recognize the extent or nature of a nationalclaim. If the Department of State will not process requests for clearance,the researching institution will either have to forego the research or develop its own bilateral and regional channels for arranging access. An established process ofcertification and policing by UNOLS oran expanded IOC mightfacilitatethese private arrangements. Particularly if no treaty emerges fromUNCLOS efforts could he made to strengthen the role of international oceanographic: organizations. This would, of course, be difficult to do if An unacceptable treaty envisions a differentrole for these organizations v is a vis coastal states. With regard to the deep seabed; high seas. U.S. legislation, inthe absence of or in opposition to an unacceptable treaty,might condUne a systematic statement of user rights and obligations in

194 199 tilt,IFf',1 withregime for deep sea mining. A number of maritime and mining states might he willing to enact similar legislation. If there is no treaty, such a legislative approach would include pro\ isiims to harmonize the interests of different ocean users, to collect and equitably distribute revenues from mining activities, to strengtheninternational oceanographic organizations, and to facilitate cooperative research programs. If there is a treaty with highly restrictive terms for seahed mining and high seas activities, the technologically advanced states would probably he willing to io,csue such an alternative meami to coordinate their activities in the deep ocean. Commercial users would certainly push for doinestic parallel legislation to promote deep sea mining and access for purposes of exploration and scientific tmquiry. The naval researchcommunityvoulddoubt lesssupportlegislation facilitating access for research :is the academic science community. Coastal state harassmc. of research activities in the deep sealwd high seas would he far i likely than in an economic zone. The extent of support for nationally legislated high seas activities would prohahly he suhstantial, and would aidin enforcement of the policy. In the event of either no treaty coming out of the UN Conference nrofatreatyunacceptable tothe United States the U.S. Government and the private science community could pursue a variety of national and diplomati,c app;oaches. Executive brarch policy statements and domestic legislation would have to be supplemented by private and public bilateral and multilateral efforts. Where appropriate, these efforts could be coordinated with strengthened international iiceanographic organizations. A treaty that was acceptaole in most but not all respects would present the U.S. Government with a difficult choice. The Congress could ratify it, ratify itith detailed reservations, or not ratify it at all. Assuming that reservaii,ms will be allowed, the middle course is the likely prospect. If the treaty is generally acceptable, the reservations could he limited in numbe r.and scope. A treaty reservationonscientific research could he accompanied hy executive or congressional action detailing U.S. policy, This could, of course, be followed up with bilateral, regional or multilateral arrangements with neighboring or like-minded states. Once again, academic research would be the most vulnerable in the face of disagreements with other states. In the absence of State Depart- ment assistance, private channels would have to be developed to facilitate ilf:Cess. The ideal situation for the U.S. marine science community would occur if UNCLOS III produced a treaty that did not unnecessarily

195 restrici eanographic research in either coastal statezones or in areas heyond. In this circumstance, the Congress could follow treaty-ratification %vith suitabl nlhih&iIl iitiiitgis1it iiin. (:oin- inercial interests could operate hilaterallYin coastal zones and under 1 satisfactory regime in the area beyond. The academic science community could have State Departmentsupport in seeking clearances and would henefit in addition froma credible private self-policing mechanism suchas UNOLS \Vithin the conte\ toftheinternationaltreaty,hilateralandregional arrangements could he elaborated to promote cooperative research. And a generally al cepted treaty would he especiallyconducive to the development of an international oceanographicorganization designedtodeelop cooperativeresearch programs, certify proposed researchprojects, and actasa clearinghousefor uceatmgr,ophic datd middissemination of research results.

NOTES

'N C,eneral Assembh.. Committee on the Peacef.il llses of the Sea-Bedand the ()( Pan Floor Beyond the Lunits of National lurisdiction, I 'notedStates nf America: (rut. t Art ii;es far a Chapter on Monne Scientific Research(A A(.1301.SC.1111..44). This distinrtion was suggested hy the Soviet delegationas a compromise between the consent and notification approaches and has beententatively accepted ht. both sides. ' (;iyen rising fuel costs, itis likely that smaller academic institutions will increasingly reduce the length of their cruises and confine their researchactivities to areas off Carhola. %lexica and in the Caribbean, 2 01. 196 OCEAN SPACEDEFINITIONS

LEGAL DEFINITIONS

1 14--- Coastal Economic Zone High Seas (proposed 188 miles) (Single Negotiating

C Text definition) Territorial Sea ontiguous Zone Land p to 24 miles-41 {proposed 12 miles) I from shore)

12 24 200 miles rniles miles

INIMIMWMI.11114 110

GEOGRAPHIC DEFINITIONS

Water column

Continental Shelf Slope Rise IDeep Ocean Floor 4. Colinental Margin ,.. Glossary of Acronyms and Terminology

Acronyms

ASW Anti-submarine warfare CCD Conference of the Committee on Disarmiunent Council of Economic Advisers CEQ Council on Environmental Quality CIEP Council On International Economic Policy CIPEC Intergovernmental Council of Copper ExportingCoun- tries EPA Environmental Protection Agency GESAMP Joint Group of Expertson the Scientific Aspects of Marine Pollution IMCO Intergovernmental Maritime Consultative Organization IOC Inturgovernmental Oceanographic Commission LASH Lighter Aboard Ship, a ship that carries ha-ges LNG Liquefied Natural Gas LOS Law of the Sea LOT Load on top, a method of reducing oil pollution from tanker ballosting MIRV Multiple Indepeni:ently-targetable Reentry Vehicle MSY Maximum sustainable yield NOAA National Oceanic and Atmospheric Administration NPC National Petroleum Council NSDM National Security Decision Memorandum NSSM National Security Study Memorandum OPEC Organization cf Petroleum Exporting Countries OPIC Overseas Private Investment Corporation PCB Polychlofinated biphenyls SNT Single Negotiating Text SOSUS Sound Surveillance System, ASWlistening devices SSBN Nuclear-powered submarine carrying ruclear ballistic missiles SSN Nuclear-powered subm..n.,,

ULMS Underwater Long-rar.:,2 _ .e System UNCLOS United Nations Confe, the Law of the Sea UNCTADUnited Nations Confers,e tin Trade and Development UNEP United Nations Environmental Programme UNOLS University National Oceanographic LaboratorySystem VLCC Very Large Crude CaiTier WMO World Meteorological Organization

198 203 Terminology , anadromous specn's-,dhose spawnnig in freshwater, such as salmon. assim:lative capacitythe ability' of the environmentalmedia to absorb wastes and render them harmless. bribesa technical term describing thepayments made by environmental damage victims to pollutersto have the latter modify their activities. coastal economic zonea zone seaward of theterritorial sea in whichthecoastal stae has jurisdictionover economic resources.IntheSingleNegotiating Text,the Coastal Economic Zone exterds from the Territorial Sea,188 miles seaward, to 200 miles from shore. commonpropertyresoarcesresourcesnotunderprivate ownership, but jointly owned. Many environmentalresources are CPRs. (:ontiguous zonea zone in which the coastalstate may exercise control necessary to preventor punish infringement of certain of its regulations whichoccur within the territorial sea. In the Single Negotiating Text, the contiguouszone extends out 24 miles from shore. continental margina natural sub-surfaceprolongation of con- tineots and islands as apart from the deepsea bottoms; generally consists of the continental shelf, slope andrise. continental risethe most seawardpart of the margin; a gentle incline between the steeper continental slopeend the deep seabed. continental shelfa zone adjacentto a continent or around an island, and extending from the lowwater line to the depth at which there is usually a marked increase ofslope to a greater depth. continental slopea declivity seaward froma shelf edge to the continental rise. demersal speciesbottom fish dredge spoilsmaterials scoopedup by dredging navigational channels, etc. dual standardsthe notion that environmentalstandards should be less restrictive for developing countriesin view of their lower levels of economic development. effluent (emission) feeschargesor taxes placed on polluters to discourage pollution. Geneva text"Informal Single Negotiating Text" thatemanated from the Geneva session of UNCLOS IIIin 1975. Also known as SNT.

199 204